!!Экзамен зачет 2023 год / Salomons, How to draft new rules on the bona fide acquisition of movables for Europe

In my opinion, these figures indicate that we cannot afford to ignore e- commerce when we are contemplating harmonizating transfer of movables law: we will have to take into consideration what effects the provisions have on online sales.

However, before we try to assess the relevance of the emergence of e- commerce for the rules on bona fide acquisition protection in particular, we should look at the characteristics of e-commerce by comparing an offline sale with an online one.

A standard offline sale is characterized by direct contact between the buyer and seller in a shop, the location not only of the conclusion of the sales agreement but also of the corporeal delivery and the instantaneous payment. The Americans have invented the catchphrase ‘cash and carry’ for this, traditional, type of trade.

In contrast, an online sale is characterized by indirect contact between buyer and seller. All of their legal acts are performed via intermediaries: the sale itself (as well as pre-sales marketing) through an internet provider, the payment through a credit card company, and the delivery through a postal service.

F.Implications of the rise of e-commerce for the bona fide acquisition protection

It goes without saying that the shift from offline to online trade has implications on a practical level: what is needed for an e-buyer (the buyer in a sales agreement concluded online) to be called ‘in good faith’? At what moment should this good faith be measured? What inquiries with regard to the authority of the seller can be expected from an e-buyer? Etcetera.

However, there are also implications on a more abstract level: the theoretical foundation of the protection itself is at stake.20 For decades, law students have been taught that the acquirer of a movable deserves protection because he should be able to rely upon the actual possession of the transferor: this actual possession legitimizes the transferor as the owner, or – in the words of the National report of Slovenia:21 the possession of the transferor “creates an image of ownership”. This is what the Rechtsscheinprinzip purports.22 How well established in Europe this theoretical foundation for the bona fide acquisition protec-

20I have argued this at greater length in my ‘Inpassen of aanpassen? Vermogensrecht voor het digitale tijdperk’, Weekblad voor Privaatrecht, Notariaat en Recht 6427 (2000), 901907.

21See Claudia Rudolf, Vesna Rijavec and Tomaž Keresteš, Transfer or movables – Slovenia [not yet published], 84.

22The development of this principle is linked to publications like Entwerung und Eigentum im deutschen Fahrnisrecht (Jena 1902) and Das Publizitätsprinzip im deutschen bürgerlichen Recht (Munich 1909) by H. Meyer and ‘Publizität und Gewährschaft im deutschen Fahrnisrecht’, Jherings Jahrbücher 49 (1905), 159-186, by A. Schultze.

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tion may be, can be inferred from the fact that all legal systems providing good faith acquisition protection require possession by the non-authorized seller.23

This requirement does not accord with the world of e-commerce: good or bad faith on the part of the e-buyer is not based upon the presence or absence of actual possession by the e-seller. In fact, it may well be that the e-seller does not have possession of the movable at the moment of concluding the sales agreement, as is the case when one orders a new computer online: assembly starts only after the order (and payment) is received and the component parts are collected by the manufacturer. But this should not mean that protection is withheld from the e-buyer, because that would be in conflict with the goal of protecting the interests of trade: e-commerce may be a novel way of doing business and not ‘business as usual’, it is business none the less, and an increasingly important one too. In sum: withholding protection from the bona fide acquirer in the case of an online sale is not in order, but his good faith should not be linked to the possession of his counterpart, and as a consequence the requirement of possession on the part of the seller can be abandoned.

If this is correct, we need a new object for the requirement of good faith. In my opinion, we should shift the focus from possession to a duty of care. The e- buyer should exercise the observance and attentiveness of a regular market participant, which translates, depending on the circumstances, into a duty to inquire into the authority of the transferor.24 In the end, the interests of trade are served best, not by protecting possession, but by protecting (and therefore enhancing) diligence. It seems both difficult and unnecessary to substantiate the rule just formulated any further; this should be left to case law.

There is no need to abandon the requirement of possession by the transferor altogether, i.e. for traditional offline transactions as well, but in my opinion there is no reason to maintain it either. Besides, for some ‘offline transactions’ case law has already established that the mere fact that the transferor is in possession is insufficient to establish the good faith of the acquirer. Think, for example, of the abundance of case law on the bona fide acquisition of used cars and the duty of the acquirer to examine the car registration papers.25 In any case, the

23According to Lurger 2006, 46.

24A similar link between good faith and a duty to inquire is to be found in art. 3:11 of the Dutch Burgerlijk Wetboek: “Where good faith of a person is required to produce a juridical effect, such person is not acting in good faith if he knew the facts or the law to which his good faith must relate or if, in the given circumstances, he should know them. Impossibility to inquire does not prevent the person, who had good reasons to be in doubt, from being considered as someone who should know the facts or the law.”

25For example: the rule that such an enquiry is indispensable for good faith was confirmed by the Dutch Hoge Raad in its recent judgement of 7 October 2005, Nederlandse Jurisprudentie 2006, 351 (Coppes vs. Van de Kolk); see Lars van Vliet, ‘Feitelijke macht en derdenbescherming, Nederlands Tijdschrift voor Burgerlijk Recht’ (2002), 282-291 in a

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alternative for possession-based good faith which I proposed above would suffice for online and offline sales alike. In the case of an offline sale, the duty to inquire into the authority of the transferor could by regarded as having been met where the bona fide acquirer has had eye-to-eye contact with the transferor in possession of the thing: the possession requirement and the duty to inquire coincide here.

In order to make our law ‘e-commerce-proof’, we should also scrutinize current provisions which grant special protection in the case of acquisition at certain locations, such as markets (France, Belgium26), stores (the Netherlands27) or auctions (Austria, Germany, Greece, Slovenia28). First of all, we have to determine why we should grant special protection to the acquirer in certain types of sales; how does that relate to our starting point that the interests of trade should guide us? But on top of that, we have to establish whether the buyer at an online market (such as Marketonline), an online store (such as Amazone) and an online auction (such as eBay) is entitled to similar protection as his offline counterpart.

comparative perspective, and Arthur Salomons, De onderzoeksplicht van de verkrijger van een tweedehands auto, Vermogensrechtelijke annotaties 2006/3, 101-124.

26Until 1995, England & Wales belonged to this list too, but on January 3 1995, the ‘market overt rule’ was abolished by the Sale of Goods (Amendment) Act 1994. The rule provided protection against the seller’s defect in title to a good faith purchaser from a market overt, but it also applied to sales in shops in the city of London and, outside London, to sales from any open, public and legally constituted market. See Sandra Frisby and Michael Jones, National Report for England and Wales on the Transfer of Movable Property (2007) [not yet published], § 10.1.7. Until 1992, The Netherlands had a rule (art. 637 Burgerlijk Wetboek) protecting purchasers at a market, similar to art. 2280 Code Civil in France and Belgium; in the new Dutch Burgerlijk Wetboek, enacted in 1992, the rule did not reappear.

27As stated in the previous footnote, the Dutch Burgerlijk Wetboek no longer provides special protection to the purchaser at a market, as was the case before 1992. Nowadays, special protection is given to – in short – consumers who buy a stolen object in a store: “the owner of a moveable thing, who has lost its possession through theft, may revendicate it during a period of three years from the day of theft, unless the thing has been acquired by a natural person, not acting in the exercise of a profession or business, from an alienator whose business it is to deal with the public in similar things, otherwise than at a public sale, on business premises destined for that purpose, being an immoveable structure or part thereof with the land belonging thereto, and provided that the alienator be in the ordinary exercise of his business”. It is unlikely that an e-buyer will be allowed to invoke this protection; see H.A.G. Fikkers, ‘E-commerce en de derdenbescherming van art. 3:86 lid 3 sub a BW’, Weekblad voor Privaatrecht, Notariaat en Recht 2000 (6406), 432-436 and Salomons 2000, 901-907.

28See Karner 2006, 24, with references.

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G.Conclusion

For present purposes it is not necessary to give more examples of the implications of the rise of e-commerce. It suffices to conclude that – in order to protect the interests of trade – provisions on bona fide acquisition are needed which, in principle, also apply to online sales. This requires rules which are indifferent to the way in which the transferee acquired the movable concerned: an acquirer should, in principle, be entitled to protection, as long as he

has acquired the movable for value,

was unaware of other, earlier proprietary interests and acted according to the standard of care and

has proceeded to acquire visible control over the movable. “

Of course, it may for some cases be necessary to rule out protection in the public interest, for example with regard to stolen objects, in order to prevent crime (theft and handling). But these are mere exceptions to our point of departure

that the interests of trade are taken as guiding. “La sûreté du commerce l’exige ainsi.“29

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