Учебный год 22-23 / A Comparison of German Moveable Property Law and English Personal Property Law-1

394 Palmer, N and Hudson, A 'Pledge' supra note 298 at 623, Goode, 587.

395 See above, F. 1. a).

396 Baur/Stürner, § 58 nn 1-2.

397 In the present discussion, it is assumed that the debt consists of payment of money, and that is the usual situation, but also a debt directed at the delivery of a res can be subject-matter of an assignment for security purposes.

398 Baur/Stürner, § 58 nn 2-4.

399 Baur/Stürner, § 58 n 5.

400 See e.g. Rahmatian, A (1996) Der Bereicherungsausgleich in Zessionslagen Peter Lang 11 with further references.

401 For example in connection with a factoring agreement, a lender-credit sale, or a general assignment ("Globalabtretung") of all existing and future debts of a business for securing a loan. These special areas are not discussed further, see an outline of these in Baur/Stürner, § 58 nn 9-15.

402 This is the view of the courts, and the prevalent academic opinion in Germany, but not undisputed, see Baur/Stürner, § 58 n 19, for further references. "Ascertainable" means that the ground as a result of which the debt will arise, and the extent of the debt are sufficiently certain at the time of the assignment, so that the actual subject matter (amount) of the debt and its debtor (the future DD) will be ascertainable when the debt comes into existence.

403 Goode, 649 (on the various types of charges).

404 Thus there are special rules for the transfer of company shares, life policies etc., see Bell, 184, Goode, 643.

405 Goode, 630.

406 Law of Property Act 1925, s. 136, Dearle v. Hall (1828) 3 Russ 1; see Goode, 643; Bell, 184.

407 Since "equity regards as done that which ought to be done", that creates an immediate equitable mortgage, Bell, 184.

408 Lunn v. Thornton (1845) 1 CB 379.

409 Tailby v. Official Reveicer (1888) 13 App Cas 523, Holroyd v. Marshall (1862) 10 HLC 191, Bridge, 180-181.

410 Bell, 382. The legal details are, however, unclear.

411 Law of Property Act, s. 53 (1) (c). See also Bell, 184, 374, Goode, 630, 643.

412 Comparative treatment on retention of title by Pennington, R R (1978) 'Retention of Title to the Sale of Goods under European Law' (27) International and Comparative Law Quarterly 277, 284-286, 290-294 et passim.

413 Goode, 584, Bell, 202-203. In German law, the retention of ownership is seen within the group of the pledge and the transfer of ownership/assignment for security purposes, and therefore a "Kreditsicherungs-" and "Realsicherungsrecht", see Schwab/Prütting, § 53 n 616.

414 Goode, 587 (fixed and floating charges), 677, 679 (floating charge).

415 English law: Bridge, 91, Bell, 202-203. German law: Schwab/Prütting, § 33 nn 388-389a.

416 In German law, transfer of ownership is effected by way of the constitutum possessorium in such cases.

417 The matter of the sale credit or lender credit sale, involving the laws of contract and of property alike, and in case of defects in the arrangement or its performance, the law of restitution/unjust enrichment, and/or tort, goes much beyond the scope of this article and cannot be discussed. For the English law see e.g. Goode, 579 with further references.

418 These clauses can have very different versions and are not always based on the Romalpa case, see overview of different types of retention of title clauses in e.g. Worthington, S Personal Property Law supra note 3 at 157-193.

419 Aluminium Industrie Vassen B V v. Romalpa Aluminium Ltd [1976] 1 WLR 676.

420 Goode, 608, Bridge, 91. S. 19 (1) produces virtually a Quistclose trust situation in its effects, though relating to goods, not loan money.

421 Baur/Stürner, § 59 n 4; Westermann/Westermann, § 39 III.

422 §§ 160 (1), 161 (1) BGB. The buyer is also protected against the seller's creditors in this respect, § 161 (1) BGB, 2nd sentence.

423 See above under D.1.c).

424 Baur/Stürner, § 59 nn 3, 32.

425 Such a right is presumed by law if not expressly stipulated, § 449 (2) BGB.

426 Baur/Stürner, § 59 n 4.

427 See above, F.1.b).

428 See Sale of Goods Act 1979, s. 19 and below.

429 Aluminium Industrie Vassen B V v. Romalpa Aluminium Ltd [1976] 1 WLR 676, Martin, J (Hanbury and Martin) Modern Equity supra note 145 at 690-691.

430 Hayton, D and Mitchell, Ch (Hayton and Marshall) Commentary and Cases on the Law of Trusts supra note 145 at 801.

431 According to the interpretation of Romalpa in Clough Mill Ltd. v. Martin [1985] 1 WLR 111.

432 In German law, that is the scenario of the "verlängerter Eigentumsvorbehalt", see briefly below and Schwab/Prütting, § 33 n 399.

433 Bell, 204.

434 However, this requirement has been increasingly disputed, often in the context of questioning the reasonableness of retaining two separate rules of tracing at common law and in equity, see e.g. Lord Millet in Foskett v. McKeown [2001] 1 AC 102.

435 Associated Alloys Pty Ltd v. ACN 001 452 106 Pty Ltd (2000) 202 CLR 588.

436 In this case Companies Act 1985, s. 395, see Re Bond Worth Ltd [1980] Ch 228. See this and other scenarios in this context in Hayton, D and Mitchell, Ch (Hayton and Marshall) Commentary and Cases on the Law of Trusts supra note 145 at 132-133.

437 See Goode, 607.

438 Baur/Stürner, § 59 nn 34-37, 49-55.

439 See discussion above, E. 2. b).

440 This is especially the claim for payment of a purchase sum as a result of the sale of the res by the buyer to third party. See also Westermann/Westermann, § 39 II.

441 See above, F.1.c).

442 According to § 185 BGB, Baur/Stürner, § 59 n 6.

443 Baur/Stürner, § 59 n 34.

444 See above, E.2.a).

445 E.g. the buyer has defaulted on the repayment and the seller has rescinded the contract but not yet recovered the moveable.

446 The third party's position is different if the ownership right in waiting exists but the person purporting to transfer this right does not have it: according to some writers, the bona fide third party shall be able to acquire in good faith the right of ownership in waiting according to § 932 BGB, see Westermann/Gursky § 45 III 1 d), and Baur/Stürner, § 59 n 39.

447 This view is not undisputed, see Westermann/Gursky § 45 III 1 d), and, generally, Baur/Stürner, § 59 nn 38-40.

448 Overview of the types of reservation of title clauses (simple clause, current account clause, extended or continuing clause, tracing or prolonged clause, aggregation or enlarged clause), in McCormack, G 'Title Retention and the Company Charge Registration System' in Palmer, N and McKendrick, E (eds) (1998) Interests in Goods (2nd ed) LLP Reference Publishing 727, 728 et seq.

449 McCormack, G 'Title Retention' supra note 448 at 757. See also above under E.2.b). If the seller stipulates that any additions to the goods supplied shall become the seller's property, the courts will regard this as a transfer of the seller's ownership in the goods supplied subject to a charge of the seller over the goods. Such a charge will typically be void because it has not been registered, see Specialist Plant Services Ltd. v. Braithwaite Ltd [1987] BCLC 1. See also Bridge, 91.

450 Compare Associated Alloys Pty Ltd v. ACN 001 452 106 Pty Ltd (2000) 202 CLR 588. This should be expressed as a specific fraction (equalling the debt owed) to be held for the seller, and the rest to be held on trust for the buyer himself, otherwise problems of certainty of subject matter of the trust could arise, see Hayton, D and Mitchell, Ch (Hayton and Marshall) Commentary and Cases on the Law of Trusts supra note 145 at 133 and n 26.

451 More discussion in McCormack, G 'Title Retention' supra note 448 at 742.

452 Goode, 424, 434. A matching rule of acquisition of ownership based on the seller's apparent ownership can be found in the Factors Act 1889, s. 9. See also above under D.2.a).

453 These clauses can be effective if the goods have been re-sold also subject to a reservation of title clause, see Re Highway Foods International Ltd [1995] BCC 271.

454 McCormack, G 'Title Retention' supra note 448 at 728 n 5.

455 Westermann/Gursky, § 139.

456 On the importance of the concepts of "fruits" and "usufructs" in Civil Law jurisdictions, see Graziadei, M 'Tuttifrutti', in Birks, P and Pretto, A (eds) (2002) Themes in Comparative Law. In Honour of Bernard Rudden Oxford University Press 121, 130.

457 E.g. Lawson and Rudden, 153.

458 Baur/Stürner, § 32 n 10-14, § 56 n 3.

459 English law would use the device of the trust with personal property as trust property in such cases.

460 Baur/Stürner, § 32 n 5-6, § 54 n 2. See the various security rights under English law above under F. 1. a)-d).

461 Compare preface (Vorwort) by Ch v Bar, in Ch v Bar (ed) (2000) Sachenrecht in Europa, Vol. I Rasch 5.

462 See also Baur/Stürner, § 36 n 129.

463 Wolf, M Sachenrecht supra note 130 at § 30 n 801a.

464 Compare Zweigert, K and Kötz, H An Introduction to Comparative Law supra note 1 at 201.

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