Band 9, Heft 2-3

For a long time, the publicity regime over movable property has been associated with possession. Many modern legal systems still operate on Roman law principles concerning the validity of transactions: Whoever is in possession of a movable asset generates the legal presumption that he or she rightfully owns that asset. Immovable assets on the other hand are tied to a different concept due to the value and meaning ascribed to them. Whereas possession signals who has which rights to claim against whom, inscriptions made in a public registry (such as a land registry) determine the fate of immovable property. Over time, reforms in the law on secured transactions have resulted in a less strict approach adopted in executing transaction relating to movable property to enable the establishment of limited rights in rem and their implementation. Regardless, most civil law jurisdictions still deem the transfer of possession as compulsory for a valid right of pledge over movable property. This article elaborates on the most significant changes to the field of property law and why certain countries may reconsider their traditional approach, especially since yet another wave of change is coming in the form of Blockchain registries. Although certain countries’ legal systems are bound to the old-fashioned principle dating back to Germanic and Roman laws, many others like the Belgian, French and Turkish systems have modernized their publicity regime applied on movable assets and have a special registry, whether regional or nationwide, for transactions related to movables. While providing a few examples from common law countries, this article is an in-depth, comparative analysis into the current condition of Swiss law on this matter and the modifications implemented under French and Turkish law. In the last section, the article reviews the imminent interaction between the publicity regime of immovables and blockchain technology.

Scholars have argued that reasonable persons can disagree on what the most sensible good-faith purchase doctrine is. Indeed, using hand-coded data on this doctrine in 247 jurisdictions, this article finds that this doctrine has hardly converged-there are at least 23 different variants of this doctrine, from “no good faith required” to “good faith is all the purchaser needs.” The 23 variants can be grouped into three clusters: the categorical approach, under which stolen goods always revert back to original owners; the binary approach, under which the distinction between stolen and non-stolen goods matters, but stolen goods do not always revert; and the unitary approach, under which there is no distinction between stolen and non-stolen goods.