National Reports on the Transfer of Movables in Europe: by Wolfgang Faber, Brigitta Lurger
By Wolfgang Faber, Brigitta Lurger
This glorious sequence of books offers a comparative learn, an research, and an assessment of 28 ecu criminal structures within the box of move of movables. the foremost subject matters tested contain: the thought of possession; the spinoff acquisition of possession (e.g. by means of a revenues contract); the great religion acquisition of possession and different estate rights; the a number of sale of an identical movable; and the safety of ownership, confident (acquisitive) prescription, and processing and consolidation. The sequence relies on accomplished kingdom experiences at the proper criminal ideas in Europe and has the drafting and booklet of textual content proposals of uniform eu principles - with statement and comparative notes - as its fundamental target. It intends to persuade the longer term improvement of ecu inner most legislation at the european point. This 5th quantity of the sequence provides updated nationwide experiences for Sweden, Norway and Denmark, Finland, and Spain.
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Extra info for National Reports on the Transfer of Movables in Europe: Volume 5: Sweden, Norway and Denmark, Finland, Spain
In the conflict between the original owner and an acquirer from a non-owner, the principle of protecting ownership or the argument of increasing economic welfare by protecting commerce shall prevail, can not be decided on a mere “logical” basis (by saying one argument is right and the other is wrong). e. a value-based decision. Whenever one makes such choice, the choice should be transparant and explained: something that is rarely done in legal debate. Before making such choices, each of these arguments could be analysed on its own level: for instance, on the level of promoting economic welfare, one could deal with counterarguments addressing the assumption of reducing transaction costs, questioning the economic effects of good faith acquisition rules etc.
However, this fundamental freedom of contract also bears several exceptions. Some of these exceptions that render juridical acts invalid are provided for in the Contract Act, such as contracts or contractual terms that under certain circumstances are entered into in violation of good faith112 or are deemed to be unfair,113 which specifically state that a consumer’s inferior status is to be taken into account. Limitations of transferability are one issue to be discussed in this context. Limitations to transfer can be seen in many situations; the limitations can be self-imposed by contract or the choice of a transferor or by will.
Sellier. 87 It is rather common to refer to “general property / contractual law principles” etc. Under a pragmatic functional approach a principle can never be stronger than the arguments supporting it in any case: it is the argument behind the principle that is important and what gives weight to the arguer’s standpoint. On the other hand, legal principles are no more than interests already weighed against each other, thus meaning that carefully balanced interests may result in a “principle”.