Rules of contract of sale:
Failure to perform:
Breach of a valid contract leads to a claim for full consequential loss in
specific performance.
Invalid/void contracts lead to undue enrichment (subject to bankruptcy
and disappearance)
Invalidity in transfer of ownership (theft):
Owner has a vindication claim in rem to recover property.
Good faith recipient of an invalid contract has claim in personam for
unjustified enrichment.
To validly own something:
Property must be acquired in a way that is recognised by law.
Thing must be capable of ownership (not drugs/ people)
Transfer of ownership requires delivery, by owner, with causa (intention
to give and receive, property requires new owners title in public registrar)
Legally protected possession (protected in rem):
Requires requisite physical control over the thing.
and the requisite mental element for possession (intention to hold as
owner)
ownership trumps possession if due legal process if followed.
Good faith possessor has compensation rights against owner (secondary
rights of compensation, unjustified enrichment) if they enhanced thing.
Modes of acquisition:
Derivative modes: A gives, and B receives by the will of both parties.
Original modes: anything else
Occupation: to take ownership of something that has no owner, these are
usually wild animals, and the owner of the land is irrelevant, lose ownership by
losing thing
Accession: when an accessory thing is attached inseparably to the principal
thing, the owner of the principal thing takes ownership of the whole, provided
that the incorporation leads to a loss if identity of the accessory thing and that
the attachment is inseparable
Accession of movables to land: land is always the principal thing, so buildings
attached to land belongs to the owner of the land (inaedificatio solo cedit)
Accession of movables to movables: inseparable attachment is determined
from an economic perspective.
Fusion (inseparable) and mixture (separable): when combined property
doesn’t alter identity (water with water)
1
, In fusion: recover proportion of property.
In mixture: if property can be identified there is a claim in property,
otherwise recover proportion.
Specification: acquiring property by making new thing about of another’s
materials, if materials can be restored (reducibility test), owner of materials is
owner, if not, or if maker contributed some materials, maker is owner.
Treasure Trove: acquisition of ownership by finding hidden property (not
abandoned so rules of occupation don’t apply)
Acquisition of fruits (natural/civil produce): owner of principle thing owns
fruits. A good faith possessor becomes owner of fruits on separation, but they
are subject to rule on consumption. This means they own the fruits but are
obliged in personam to restore the value of fruits to principal owner, to the
extent that is still in their possession at the time the action is raised
(unconsumed fruits).
Prescription: becoming owner by possessing thing for certain time period
under following conditions:
1. Just cause (transaction on normal basis of transfer of ownership)
2. Good faith acquisition
3. Prohibition of prescription of stolen goods
4. Holding for the requisite time period
Elements of transfer of ownership:
Informal delivery
simple delivery (tradio) or conveyance of thing from owner to intended
recipient.
Formal delivery
requires registration of new owner’s title in public register for land and
building.
longhand delivery (traditio longa manu): I point at
Shorthand delivery (tradito brevi manu): I hand to you, then you buy.
Agreement on retaining possession (constitutum possessorium): seller
retains possession with permission from owner through a clearly
identifiable, legally recognised transaction.
Symbolic recognition: requires direct correlation: the key to a car.
Cause:
There must be a reason for the transfer of ownership.
There must be an agreement between both parties that ownership will
transfer.
Transfer of ownership is abstract and can occur even in an invalid
transaction.
Owner:
2
Failure to perform:
Breach of a valid contract leads to a claim for full consequential loss in
specific performance.
Invalid/void contracts lead to undue enrichment (subject to bankruptcy
and disappearance)
Invalidity in transfer of ownership (theft):
Owner has a vindication claim in rem to recover property.
Good faith recipient of an invalid contract has claim in personam for
unjustified enrichment.
To validly own something:
Property must be acquired in a way that is recognised by law.
Thing must be capable of ownership (not drugs/ people)
Transfer of ownership requires delivery, by owner, with causa (intention
to give and receive, property requires new owners title in public registrar)
Legally protected possession (protected in rem):
Requires requisite physical control over the thing.
and the requisite mental element for possession (intention to hold as
owner)
ownership trumps possession if due legal process if followed.
Good faith possessor has compensation rights against owner (secondary
rights of compensation, unjustified enrichment) if they enhanced thing.
Modes of acquisition:
Derivative modes: A gives, and B receives by the will of both parties.
Original modes: anything else
Occupation: to take ownership of something that has no owner, these are
usually wild animals, and the owner of the land is irrelevant, lose ownership by
losing thing
Accession: when an accessory thing is attached inseparably to the principal
thing, the owner of the principal thing takes ownership of the whole, provided
that the incorporation leads to a loss if identity of the accessory thing and that
the attachment is inseparable
Accession of movables to land: land is always the principal thing, so buildings
attached to land belongs to the owner of the land (inaedificatio solo cedit)
Accession of movables to movables: inseparable attachment is determined
from an economic perspective.
Fusion (inseparable) and mixture (separable): when combined property
doesn’t alter identity (water with water)
1
, In fusion: recover proportion of property.
In mixture: if property can be identified there is a claim in property,
otherwise recover proportion.
Specification: acquiring property by making new thing about of another’s
materials, if materials can be restored (reducibility test), owner of materials is
owner, if not, or if maker contributed some materials, maker is owner.
Treasure Trove: acquisition of ownership by finding hidden property (not
abandoned so rules of occupation don’t apply)
Acquisition of fruits (natural/civil produce): owner of principle thing owns
fruits. A good faith possessor becomes owner of fruits on separation, but they
are subject to rule on consumption. This means they own the fruits but are
obliged in personam to restore the value of fruits to principal owner, to the
extent that is still in their possession at the time the action is raised
(unconsumed fruits).
Prescription: becoming owner by possessing thing for certain time period
under following conditions:
1. Just cause (transaction on normal basis of transfer of ownership)
2. Good faith acquisition
3. Prohibition of prescription of stolen goods
4. Holding for the requisite time period
Elements of transfer of ownership:
Informal delivery
simple delivery (tradio) or conveyance of thing from owner to intended
recipient.
Formal delivery
requires registration of new owner’s title in public register for land and
building.
longhand delivery (traditio longa manu): I point at
Shorthand delivery (tradito brevi manu): I hand to you, then you buy.
Agreement on retaining possession (constitutum possessorium): seller
retains possession with permission from owner through a clearly
identifiable, legally recognised transaction.
Symbolic recognition: requires direct correlation: the key to a car.
Cause:
There must be a reason for the transfer of ownership.
There must be an agreement between both parties that ownership will
transfer.
Transfer of ownership is abstract and can occur even in an invalid
transaction.
Owner:
2
