Экзамен зачет учебный год 2023 / Pradi, TRANSFER OF IMMOVEABLE PROPERTY IN EUROPE FROM CONTRACT TO REGISTRATION
.pdfIn the registration of titles system, private contracts are also accorded priority when inscribed. However, the Registrar is accorded authority that is almost akin to that of a judge and will not inscribe a right if it negatively affects one previously inscribed, unless the title holder gives his permission for the Registrar to do so. This eliminates a potential weakness of the registry and means that those legal systems that have this type of Registry treat inscription as conclusive proof of the existence of the right, and establish a system of responsibility for those exceptional cases in which there is an error in the register. As a consequence, those who acquire a property in good faith, trusting in the accuracy of the registry, will be not be stripped of their rights over the property even if the genuine title holder subsequently appears.
The two registry systems incur different types of expenses and provide different kinds of benefits in terms of reducing the costs derived from the uncertainty and the risk of losing property rights.
The registration of deeds system is certainly cheaper than the registration of titles system, but it is generally considered less effective. The lower cost of the registration of deeds system is due to the fact that the examination of the deeds to establish the legality of the rights contained in them is purely voluntary, and under these systems services to assess and insure the parties are provided by private companies. This has sometimes been cited as a benefit, because as this system foments the intervention of the private sector the resulting competition to provide services tends to minimize the cost of the services they provide.
However, in the opinion of ARRUÑADA (2004, p. 70), these advantages are more illusory then real. The cost of voluntarily insuring a right can be as much as and sometimes even higher than the cost occasioned by the inscription of the right in the public registry. The organization of this type of service by the private sector may also be inefficient in economic terms as they are often provided by monopolies and are normally tightly controlled by state regulations. Both the fees of a French notary and the prices than can be charged by an insurance company in the United States are fixed by the state, and both the notary and the insurance company are subject to legislation that limits entrance to their profession and specifies
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the “products” they can offer and the procedures they must follow. As a consequence, this duplication of institutions (private companies and the deeds registry) to provide guarantees to the parties in a property transfer is not economically efficient.
The registration of titles system requires a prior examination of the legality of the rights to be inscribed to be carried out by a public official. This requisite obviously increases the costs of the transaction. However, by organizing the property Registry in a professional manner along the same lines as the organization of the judiciary, a high level of productivity can be achieved. This level of productivity is even higher when the registrar earns the benefits produced by the Registry office (as is the case in Spain).
The costs of the registration of titles system are offset by the greater security it provides22, as it protects those who acquire property in good faith through rules that govern the responsibility for errors in the registrar (by which subjects are compensated for losses caused by errors)
(ARRUÑADA, GAROUPA, 2004).
22 According to Demsetz, 1967, p. 347 y ff; this improvement in the definition of the rights in question is only efficient when the benefits associated with it are greater then the costs it generates.
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BIBLIOGRAPHICAL REFERENCES
ALFARO ÁGUILA-REAL, J. (1996), “Los costes de transacción”, en AA.VV. coord. IGLESIAS PRADA, J.L., Estudios jurídicos en homenaje al profesor Aurelio Menéndez, Vol. 1, pp. 131-162.
ALONSO PÉREZ, M. (1972), El riesgo en el contrato de compraventa, Montecorvo, Madrid, 1972.
ARRUÑADA, B. (2004), La contratación de los derechos de propiedad: un análisis económico, Centro de Estudios Registrales, Madrid, 2004.
ARRUÑADA, B., GAROUPA, N. (2004), “The choice of titling system in Land”, consultado en www.econ.upf.es/docs/papers/downloads/607.pdf
BAIRD, D., JACKSON, T. (1984), “Information, uncertainty and the transfer of property”, Journal of Legal Studies, vol. XIII, pp. 299-320.
BARZEL, Y. (1989), Economic analysis of property, Cambridge University Press, Cambridge.
BRANDT, H. (1940), “Eigentumserwerb und Austauschgeschäft, der abstrakte dingliche Vertrag und das System des deutschen Umsatzrechts im Licht der Rechtswirklichkeit”, Leipziger rechtswiss. Studien, n. 120, pp. 322-343.
CALABRESI, G., MELAMED, A.D. (1972), “Property rules, liability rules and inalienability rules: one view of the cathedral”, Harward Law Review, n. 85, pp. 1089-1120.
COASE, R.H. (1959), “The Federal Communications Commission”,
Journal of Law & Economics¸ vol. 2, 1959, pp. 1-40.
--- (1960), “The problem of social cost”, Journal of Law & Economics¸vol. 3, pp. 1-44.
COOTER, R., ULEN, T. (2004), Law and economics, Pearson Education,, 4ª ed., Boston.
DEMSETZ, H. (1967), “Towards a Theory of Property Rights”, The American Economic Review, vol. 57, núm. 2, mayo, pp. 347-359.
EHRENBERG, V. (2003), Seguridad jurídica y seguridad del tráfico, Introducción y traducción de PAU PEDRÓN, A., Colegio de Registradores de la Propiedad, Mercantiles y Bienes Muebles de España.
GÓMEZ POMAR, F. (1998), “Derechos de propiedad y costes de transacción: ¿qué puede enseñar Coase a los juristas?”, ADC, Vol. 51, n. 3, pp. 1035-1070.
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GORDILLO CAÑAS, A. (2001), “La inscripción en el Registro de la Propiedad (su contenido causal, su carácter voluntario y su función publicadora de la realidad jurídico-inmobiliaria o generadora de su apariencia jurídica)”,
ADC, 2001, pp. 5-256.
LANGE, H. (1943), “Rechtswirklichkeit und Abstraktion”, AcP, 148, pp. 188-220.
LIBECAP, G.D. (1993), Contracting for property rights, Cambridge University Press, 1ª reed.
MANNE, H.G. (1975), The economics of legal relationships: readings in the theory of property rights, West Publishing, St. Paul.
MÉNDEZ GONZÁLEZ, F. P. (2002), “La función económica de los sistemas registrales”, RCDI, núm. 671, pp. 875-900.
MURNIGHAN, J. K. (1992), Bargaining Games: A New Approach to Strategic Thinking in Negotiations, William Morrow & Company.
NORTH, D. C. (1990), Institutions, institutional Change and Economic Performance, Cambridge University Press.
PAZ-ARES, C. (1981), “La economía política como jurisprudencia racional (Aproximación a la teoría económica del derecho)”, ADC, Vol. 34, pp. 601-708.
---(1985), “Seguridad jurídica y seguridad del tráfico”, RDM, n. 175176, pp. 7-40.
---(1997), “Seguridad jurídica y sistema notarial (una aproximación económica)”, en AA.VV., Fe pública y vida económica, Instituto de Estudios Económicos, Madrid, 1997, pp. 59-99.
PEJOVICH, S. (1995), Economic analysis of institutions and systems, Kluwer Academic Publishers, Dordrecht.
SACCO, R. (1991), “Conclusión: Congresso Internazionale Pisa- Viareggio-Lucca, 17-12 aprile 1990”, AA.VV., Vendita e Trasferimento della propietà nella prospettiva storico-comparatistica, Dott. A. Giuffrè Editore, Milano, p. 890-905.
WILLIAMSON, O.E. (1985), The economic institutions of capitalism, The Free Press, New York.
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TRANSFER OF IMMOVABLE
AND REGISTRATION SYSTEM IN AUSTRIA:
A BRIEF OVERVIEW
Alessio Greco
1. Introduction
The events after the Spring of Nations in 1848 and the Habsburg Court desire to implement a legal system more congruent with the social and economic conditions of the citizens of the Empire during the 19th century, favoured the contact between Austrian and German legal scholars. The merit of building such a bridge between these two worlds has to be mainly ascribed to Josef Unger professor of jurisprudence at the ViennaUniversity who was a fervent supporter of the Historical School of Law and of the PandectistSchool.1 However, although Unger’s writings helped to forge the links between Austrian law and German Pandectist doctrines, it would be a mistake if one regarded the Austrian private law as being similar in appearance to the German one. Actually, if one looks at the history of the codification of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB), one can notice that the code is firmly rooted in the Iustiniani Institutiones,2 though strongly affected by the natural law jurisprudence and by Kant’s moral philosophy.3
PhD candidate at the University of Graz and University of Trento. Research Assistant RESOWI-Zentrum della Karl-Franzens - Universität Graz.
1 For an introduction to the development of the Austrian private law system see KONRAD ZWEIGERT [HEIN KÖTZ], Introduction to comparative law, Oxford: Clarendon Press (3rd ed., 1998), 157-166; FRANZ GSCHNITZER, Allgemeiner Teil des bürgerlichen Rechts, Vienna-New York: Springer (2nd ed., 1992), 9-28.
2THEO MAYER-MALY, Kauf und Eigentumsübergang im österreichischen Recht, ZNR 12 (1990), 164-168. In this regard, one has to underline that the approach to the principles of Roman law occurred trough the filter of the glossators and commentators.The former aimed at clarifying the meaning of the provisions of the Corpus Iuris Civilis through a detailed text studies; the latter aimed at achieving a practical application of the Roman law through interpretation and fictitious constructions.In this regard, see GSCHNITZER, Allgemeiner Teil, 10.
3ANTONIO GAMBARO [RODOLFO SACCO], Sistemi giuridici comparati, Torino: UTET (2nd ed., 2002), 395.
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This is more evident if one considers the relationship between the ‘transferor-transferee’ dichotomy and the derivative acquisition of ownership. These are based upon the model of Roman law, the Codex Theresianus and the subsequent legislative projects4 aimed at offering a comprehensive and uniform system to regulate the transactions among citizens within the Austrian Empire. By the reading of the modern Austrian Civil Code, the acceptance of the Roman doctrine of contract law is evident. ABGB § 380 provides in fact, that property cannot be acquired without a title (titulus – Titel/Verpflichtungsgeschäft) and a legal mode of acquisition (modus adquirendi– Erwerbungsart). Henceon the one hand, any valid legal act transferring ownership (titulus) gives rise only to the transferor’s personal obligation to transfer ownership of the goods to the transferee. On the other hand, the proper acquisition of ownership right to the goods occurs by virtue of a further act through which the transferee acquires physical control of the goods (modus adquirendi).
2. Derivative Acquisition
According to ABGB §§ 380, 423, and 425, title (Titel/Verpflichtungsgeschäft) and delivery (Übergabe/Übernahme) are the requirements for an effective derivative acquisition. Obviously, the law requires also that the transferor be entitled to transfer the ownership right to the goods. Indeed, if one reads the last sentence of ABGB § 442, one can immediately notice the echo of the nemo plus iuris principle of Roman law according to which no one can transfer to another person more rights than he himself has.5 This rule however, does not apply in the case of agency. In fact, although the agent is not the owner; he is entitled to transfer ownership by virtue of
4Codex Theresianus, Title II, Caput IV, § 1, inPHILIPP HARRAS RITTER VON HARRASOWSKY
(edited by), Der Codex Theresianus und seine Umarbeitungen, (1884); Entwurf ‚Horten‘, Capitle V/2, § 1, inPHILIPP HARRAS RITTER VON HARRASOWSKY (edited by), Der Codex Theresianus und seine Umarbeitungen, (1886), vol. 1.
5 This means that in case the transferor is the holder of an ownership right under condition or term, the transferee will acquire only an expectant right to ownership, which will be affected to the extent that the condition or the term occurs.See HEINRICH
KLANG, in HEINRICH KLANG (edited by), Kommentar zum Allgemeinen Bürgerlichen Gesetzbuch, Vienna: Österreichische Staatsdruckerei (2nd ed., 1950), vol. II, § 442, 383.
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the fact that the owner has vested him with authority to dispose (Verfügungsbefugnis).6 Moreover, in case the transferor does not have such an authority, the real owner can subsequently ratify the transferor’s act of disposition so to make it retroactively and legally effective.7
According to ABGB § 424 the title to derivative acquisition can be based upon a contract, a mortis causa disposition, a court decision, or an order by law. However, the law requires the title being objectively valid.8
This means that the ownership transfer is effective as long as there are no defects that can invalidate the effectiveness of the parties’ agreement. Consequently, in case the title is void or it becomes ineffective due to enforcement of one of the causes of annulment with ex tunc effects provided by the civil code, the transfer is deemed to have been invalid since the beginning. Any delivery of the goods to the transferee would be ineffective and the return of the property to the transferor would be required.9 Such a result does not occur in case the title is declared ineffective with ex nunc effects. The delivery to the transferee in this case, will not be affected since the transferor had notwithstanding, a valid title at the time of the transfer of the goods and before the declaration of its ineffectiveness.10 However, if the transferor has to return his performance to the transferee because of defeasibility of the title, the transferor is entitled to bring a claim for the return either of the property or of its economic value based upon the transferee’s unjustified enrichment
6GERT IRO, Bürgerliches Recht. Sachenrecht, Vienna-New York: Springer (3rd ed., 2008), vol. IV, 116.
7IRO, ibidem.In this regard, one has to underline that Iro’s thesis is based upon a doctrinal interpretation of the second sentence of ABGB § 366, according to which the transferee validly acquires ownership from a non-owner, if the latter has acquired in the meantime the ownership of the transferred goods.For more details see WOLFGANG FABER, National Reports on the Transfer of Movables in Austria, in WOLFGANG FABER
[BRIGITTA LURGER] (edited by), National Reports on the Transfer of Movables in Europe, Munich: Sellier (2008), 60.
8IRO, op. cit., 113.
9IRO, op. cit., 114; BERNHARD ECCHER, in HELMUT KOZIOL [PETER BYDLINSKI, RAIMUND
BOLLENBERGER] (edited by), Kurzkommentar zum ABGB: Allgemeines bürgerliches Gesetzbuch, Vienna: Springer (2nd ed., 2007), § 424, 388.Same principle applies in case of annulment of the expropriation order (OGH SZ 69/39 = ÖJZ 1996/135 (EvBl)).
10 Iro, ibidem.
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(schuldrechtlicher Rückgabeanspruch).11 Accordingly, Austrian property law is considered a ‘causal’ transfer system and this makes the Austrian property law different from the German ‘abstract’ transfer system. In fact in Germany, the validity of title is not relevant for the effectiveness of ownership transfer: therefore the transferee will acquire ownership right to the goods simply by virtue of a valid modus adquirendi.
One can explain such a difference in the construction of the ownership transfer system by looking at the history of the two countries and the interests which the draftsmen of the respective civil codes wanted to protect at the time of their implementation12. On the one hand, there was the German Empire which during the end of the19th century and the beginning of the 20th century, emerged to become one of the most powerful industrial economies in the world and a formidable great power. On the other hand, there was the Habsburg Empire a wide territory in which the economy was mainly of feudal nature. Moreover, after the second half of the 19th century, the Habsburg Empire endured a period of ongoing wars which increased the national deficit and took resources away from the private industry discouraging consequently industrial growth.
Given all of this, it is easily understandable that in the intention of the draftsmen of the German Civil Code, the ‘abstract’ transfer system aimed at granting quickness and certainty in the daily trade transaction in favour of the transferee. In the opinion of the Austrian drafters by contrast, the ‘causal’ transfer system was the means to protect more effectively the owner in a society where property was a relevant index of wealth.13
As it is precisely stated by ABGB § 425, the transferor does not acquire any ownership right by virtue of the solo title but a further requirement is
11KARL SPIELBÜCHLER, in PETER RUMMEL (edited by), Kommentar zum Allgemeinen
Bürgerlichen Gesetzbuch, Vienna: MANZ (3rd ed., 2000) vol. I, § 424, 630.
12The preparatory work for the German Civil Code (Bürgerliches Gesetzbuch – BGB) started in 1881, but the Code became effective only on the 1st of January 1900.The Austrian Civil Code was enacted on the 1st of January 1812 after almost 40 years during which the Codex Theresianus (1766), the Horten Entwurf (1776), and Josephinische Gesetzbuch (1787) took turns in the codification process of the Austrian civil law.
13MAYER-MALY, op. cit., 168.
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necessary for a valid ownership transfer. This is qualified as mudus adquirendi and it consists of giving to the transferee the power to exercise an erga omnes power over the asset. Some scholars consider the modus adquirendi as being the combination of two acts: a juridical act by virtue of which the parties agree that ownership will pass from the transferor to the transferee (disposition agreement – Verfügungsgeschäft) and the material act by virtue of which the asset is physically transferred to the transferee (Übergabe). Others consider the modus adquirendi consisting only in the transferee’s material control of the asset on the basis of the fact that the parties are free to decide when to stipulate the Verfügungsgeschäft. The disposition agreement can occur in fact, at the time either of the stipulation of the underlying contract (Verpflichtungsgeschäft) or of the delivery of the property. Consequently, the relevant moment for the achievement of the ‘ownership transfer’ mechanism is identified in the delivery of the asset.14
This different understanding of the concept of modus adquirendi divided the scholars as for the transferor’s possibility to change his mind. According to those scholars who argue that the modus adquirendi consists of the disposition agreement and delivery, the transferor is entitled ex uno latere to retain the ownership right in spite of the delivery although the parties did not agree upon retention of title clause. On the other hand, scholars who indentify the modus adquirendi in the delivery deny such a possibility since the transferor cannot change his mind as soon as the underlying agreement and the disposition act are jointly stipulated.
Some scholar contests such an opinion because it would deny the possibility of the transferor to exercise self-help in case the transferee was defaulting. Acquisition of possession of the asset implies always the collaboration of both parties but if the transferor’s intention to dispose of
14IRO, op. cit., 114; THOMAS KLICKA, inMICHAEL SCHWIMANN [BEA
VERSCHRÄGEN](edited by), ABGB. Praxiskommentar, Vienna: LexisNexis (3rd ed., 2005) vol. II, § 425, 219; ECCHER,in KOZIOL/BYDLINSKI/BOLLENBERGER, op. cit., § 425, 389.As for the requirement of delivery (traditio), some scholars argue that in the intention of the draftmen of the civil code delivery was not a necessary element to the acquisition of ownership right.They maintain, indeed, that acquisition is achieved by virtue of the Verfügungsgeschäft and delivery is only the mean to make acquisition effective vis-à-vis third parties.In this regard, see KLANG,in KLANG, op. cit., § 425, 306.
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