11. The three systems compared. A common core?

11.1 The first dividing line: tradition systems and consensual systems

Mitigation of the traditio requirement

The consensual system of the French civil code was not a sudden break with the Roman tradition system. On the contrary, it slowly developed from the Roman transfer system as a result of the widespread use of forms of fictitious tradition (transfer of possession by mere agreement).

Notwithstanding the contrasting starting-points between the consensual and the tradition system there is no great discrepancy between a consensual system and a tradition system that allows fictitious transfers of possession (in Latin: traditio ficta). True, in a consensual system ownership in principle passes when the contract is made, whereas in a tradition system it passes only when possession is transferred. Yet the difference appears quite insignificant when considering that these principles are merely ius dispositivum and not compulsory. In both transfer systems the moment when ownership should pass may be altered by the parties to the contract.

In a consensual system the parties can opt for ownership to pass at a later time, or they can make the passing of ownership depend on a certain condition such as full payment of the purchase price (retention of ownership clause). In a tradition system the parties may opt to advance the passing of ownership by using a fictitious transfer of possession. Using a traditio ficta such as constitutum possessorium they are able to let ownership pass when the contract is made, before any physical transfer of possession has taken place, and thus achieve the same result as in a consensual system.

One could object, however, that the acknowledgement of fictitious tradition has not taken away all practical differences. After all, as a consequence of abolishing the traditio requirement a consensual system allows ownership to be transferred even when the owner is not in possession of the object, for example because the thing has been stolen or lost. In contrast, a pristine, unmiti­gated tradition system cannot let ownership pass in such a case, even if it allows forms of traditio ficta. For, tradition, whether real or fictitious, constitutes a transfer of possession. And, although a traditio ficta is made simply by agreement without any physical handing over of the object, it still requires the owner to be in possession. Without possession there is no transfer of possession. In a tradition system such as German and Dutch law this practical difficulty has been solved by accepting that in these instances no form of tradition is required, not even a traditio ficta.³³

As a result of these mitigations of the traditio requirement almost all practical differences between the consensual system and the tradition system have disappeared: in both systems the parties are able to let ownership pass at the moment of their choice. The difference between the two systems is a difference only of starting-points, and these are ius dispositivum.

The specificity principle

However, there is no unlimited freedom for the parties in choosing the time when ownership should pass. The principle of specificity prevents ownership from passing before it is known exactly which specific assets should be transferred to the acquirer. Where a certain amount of generic goods is sold, ownership will pass only after specific assets have been identified as the goods to be transferred to the buyer.³⁴ Yet, what is important to our comparison: the consequences of the principle of specificity are exactly the same in both systems, so that the principle does not cause the systems to diverge. The reason for this is quite simple: the principle of specificity flows from the definition of ownership, and this definition is equal in every legal system described here. Ownership, like any other real right, forms a relationship between a person and a certain identified asset. Consequently, in order for ownership to be transferred it must be known which specific asset is to be transferred.

The minimum requirements

The absolute minimum requirements for a voluntary transfer of movables are twofold. First, the transferor and transferee should agree about the passing of ownership,³⁵ and, second, this agreement should be related to specific identified assets. In short, the parties should agree to the transfer of specific assets.

Traditio is not essential to the transfer itself and tolerates to be set aside. The original function of the traditio requirement has long ago become obsolete the moment indirect possession was acknowledged. In primitive legal systems handing over of physical power makes public the transfer of ownership. But, from the moment a legal system acknowledges indirect possession, that is possession without physical power over the object, possession can no longer be relied on as a means of publication.³⁶ A person may have physical power without having ownership or, reversely, he may have ownership without having physical power. In the case of traditio ficta the passing of ownership is invisible to third parties. Moreover, there may be a transfer of physical power without a transfer of ownership, as in the case of a loan or lease. And even where traditio involves a transfer of ownership the transfer may be made under a suspensive condition (such as a retention of ownership clause) so that the buyer receives physical power without becoming owner at the same time.