II. Historical roots and comparative law
83
The following part provides an overview of the development of the obligation to transfer the property, beginning with Roman law. Based on the insights gained, fundamental differences regarding the theoretical and procedural approaches to the obligation to transfer the property under French, Swiss, English, and German law are discussed. These differences may have led the Commission at Unidroit to believe that a unification should not be
1. Roman law
84
Sales law and the notion(s) of property have not followed a linear development under the (broad) umbrella term Roman law. A complete timeline including all the associated controversies is beyond the scope of this work.197 This section rather highlights selected aspects that demonstrate the roots upon which many legal systems have later developed their respective solutions. Examining these roots allows for a better understanding of current national laws, general discussions on the seller’s obligation to transfer property, and thus, ultimately an enhanced understanding of the CISG.
a) Actio auctoritatis, stipulatio duplae, stipulatio habere licere, and obligation to transfer property
85
Based upon the distinction between different obligations to transfer the property above,198 any statement claiming that no obligation to transfer property existed under Roman law would need to specify which form of this obligation is being referred to. With respect to the obligation to fulfill the necessary acts for the transfer of property, Roman law might indeed have had a similar obligation to mancipate (convey).199 The obligation was, however, not understood to mean that the seller had to make the buyer owner of the goods.200 There was, thus, no obligation to transfer unencumbered property.201
86
Rather, the liability of a seller who was not the owner of the goods sold underwent different steps of evolution, and never reached the form of an obligation to transfer unencumbered property.202 Under the oldest form
87
Since the obligatio auctoritas was limited to the mancipatio 212 and did not apply to other sales transactions,213 a parallel liability to the actio auctoritatis was developed by recognizing the seller’s ability to give a stipulatio 214 to this effect.215 This was a basis for a contractual liability, but still not yet based on a contract of sale, which was only developed much later.216 Under the stipulatio duplae, the double price was to be paid to the buyer if the goods were evicted from the buyer by actio in rem and the buyer had called on the seller to defend the suit.217 It has to be differentiated from the stipulatio habere licere that made the seller liable for the damage suffered by the buyer that had to be assessed by the iudex.218 Under both liability regimes, however, the obligation of actual defense and the criminal implications and procedural environment took a back seat while the liability for eviction became more important.219 The stipulationes became customary, and later even compulsory: The actio empti allowed the buyer to compel the seller to give a stipulatio to this effect, and even later, the seller was generally treated as having given it.220 This eviction-based system is understood to represent the last evolving state of the obligation to defend the buyer, and does not hide its origin.221 While most notably Eck and Rabel interpreted Roman law
88
In essence, Roman law may have contained an obligation to fulfill the necessary acts for the transfer of property, but did not contain an obligation to transfer unencumbered property free of third party rights and claims. If the buyer did not receive absolute property in the goods, sellers were not liable unless they either knew of their lack of property or the buyer was sued by the owner and the goods were evicted. Roman law remained an eviction-based liability system at its core.
b) Explanatory approaches
89
Apart from Eck and Rabel’s reasoning that the progression toward a more fully evolved obligation was initiated but not completed,223 different approaches have been proposed to explain the buyer’s position under Roman law and the rejection of an obligation to transfer unencumbered property. Two approaches, while perhaps speculative, are worth discussing because they nevertheless may provide insights when interpreting the CISG.
90
First, it is notable that during most of the evolution of the seller’s liability, no singular, absolute and unified notion of property existed.224 The limited role of property with regard to the seller’s liability could arguably stand in direct connection with this fact, as for example, otherwise a peregrinus (one who could not have Quiritiary property) would have been excluded from such transactions.225 As far as the counter-argument is raised that Roman law in fact had all the relevant notions (among them property) developed,226 this can only be meant to refer to the late legal status after the unification by Justinian.227 Prior to that time, the absence of a uniform concept might have contributed to the failure to develop an obligation to transfer unencumbered property.
91
Second, a different line of thought is that Roman law deliberately rejected an obligation to transfer the unencumbered property, given the existing notions of property, transfer and obligation, and the fact that parties under a barter were obliged to transfer the property free of third party rights.228
92
Moreover, although no bona fide acquisition of property was possible under Roman law,231 a buyer of movables could obtain absolute property within one year of possession (usucapio).232 This may have drastically reduced the buyer’s need for further protection against the future possibility of a third party successfully suing the buyer. Yet, this may not always have been very helpful to the buyer of goods from a non-owner since the usucapio was not possible with regard to furtive movables, and the notion of furtum included both theft and the sale of a movable that was owned by somebody else.233
2. National laws
93
Examination of a sample of current national laws further reveals the roots underlying the discussion of the respective obligations under Articles 30 and 41 of the CISG. In turn, the Roman roots of some of the legal systems depicted regarding the seller’s obligation to transfer the property will become obvious.
a) French law
94
The French Civil Code does not contain an explicit obligation of the seller to transfer the property with regard to sales contracts. While scholars claim that this obligation is at least represented in the definition of a sales con
aa) Garantie d’éviction and Articles 1626 et seq. of the French Civil Code
95
French sales law generally equips buyers with the sellers’ garantie d’éviction under Articles 1626 et seq. of the French Civil Code. In line with the Roman legal tradition, the seller’s liability is generally triggered by a third party suing the buyer and the goods being awarded to the former, or in circumstances considered equivalent by the law.236 This is referred to as the “garantie du fait des tiers” which is, however, only half of the obligation. The “garantie du fait personnel”, in contrast, obliges the sellers not to trouble the buyers with factual actions that might hinder the buyers’ enjoyment of the goods or by legal actions as far as the sellers try to vindicate the goods or the like.237 Yet, this does not hinder sellers from either relying on nullity of contract or making use of contractual remedies, it merely prohibits sellers from claiming the sold goods if the respective contract has not yet been annulled.238 In line with Roman law, this regime of liability does generally not apply before the buyer is subject to a lawsuit. Yet, in contrast to Roman law, there is no independent obligation of sellers to defend their respective buyer in legal proceedings (obligatio auctoritas).
bb) Nullity of the sale of goods that belong to a third party under Article 1599 of the French Civil Code
96
In a divergence from Roman law, Article 1599 of the French Civil Code might surprise jurists educated outside the French legal system:239 “La
“Elle est parfaite entre les parties, et la propriété est acquise de droit à l’acheteur à l’égard du vendeur, dès qu’on est convenu de la chose et du prix, quoique la chose n’ait pas encore été livrée ni le prix payé.”
97
From this point of origin, French law – in line with Wolff but in contrast to Pothier 243 – considers a contract under which this is not possible due to a third party having property in the goods to be null under Article 1599 of the French Civil Code. This provision and the idea of a direct proprietary effect of the sales contract are, hence, profoundly interwoven.
98
Two prerequisites for the application of Article 1599 of the French Civil Code are, first, that the seller is not the owner of the goods, and second, that the contract calls for an immediate transfer of property in specific, identified goods.244 The scope of the provision’s application is therefore limited, since for example, the first requirement is not fulfilled if the seller has apparent authority to sell the goods.245 The case of unidentified goods is a further example of an excluded scenario, due to the second requirement.246
99
Apart from the limitations with regard to the scope of application, the legal consequences are on one hand more limited and on the other hand more
cc) Summary
100
Considered holistically, French law does not have an explicit obligation to fulfill the necessary acts for the transfer of property. It only has an obligation to transfer unencumbered property with regard to sales of specific goods due to Article 1599 of the French Civil Code. No such protection is afforded if unascertained goods are being sold, because Article 1599 of the French Civil Code does not apply and Articles 1626 et seq. of the French Civil Code protect the buyer only upon eviction of the goods or similar circumstances. Apart from this exception, French law is firmly rooted in the Roman tradition with its eviction-based liability system.
47 b) Swiss law
101
The Swiss Code of Obligations appears to contain contradictory provisions which are difficult to reconcile with a clear approach regarding the obligation to transfer the property in the goods under sales contracts.253
aa) Articles 184 and 192 et seq. of the Swiss Code of Obligations
102
On the one hand, Article 184(1) of the Swiss Code of Obligations states:
“Durch den Kaufvertrag verpflichten sich der Verkäufer, dem Käufer den Kaufgegenstand zu übergeben und ihm das Eigentum daran zu verschaffen [...].”254
103
On the other hand, Articles 192 et seq. of the Swiss Code of Obligations are seemingly based on liability for eviction.255 Article 192(1), for example, states:
“Der Verkäufer hat dafür Gewähr zu leisten, dass nicht ein Dritter aus Rechtsgründen, die schon zur Zeit des Vertragsabschlusses bestanden haben, den Kaufgegenstand dem Käufer ganz oder teilweise entziehe.”
104
The unofficial English translation reads: “The seller is obliged to transfer the purchased goods to the buyer free from any rights enforceable by third parties against the buyer that already exist at the time the contract is concluded.”256 It allows for an interpretation of the provision that hinges on the question whether the buyer has received the goods free from rights of third parties. The English wording is, however, inaccurate or at least misleading, which is already apparent in comparison to the German text, but even more so compared to the French text that explicitly references “éviction” as the source of the seller’s liability:
“Le vendeur est tenu de garantir l’acheteur de l’éviction qu’il souffre, dans la totalité ou dans une partie de la chose vendue, en raison
105
Hence, there is tension between the wording of Articles 184(1) and 192 et seq. and it is therefore not clear whether Swiss Code of Obligations contains an obligation to transfer unencumbered property.257 It is, however, undisputed that until the goods have been delivered, the buyer can rely on Articles 97 et seq. of the Swiss Code of Obligations, which deal with the consequences of non-performance under general contract law. Yet, at this stage (pre-delivery), the parties cannot rely on remedies provided by sales law under the Articles 184 et seq. of the Swiss Code of Obligations.258 At first sight, one might conclude that the failure to transfer property is the non-performance of the seller for purposes of Articles 97 et seq. of the Swiss Code of Obligations. Consequently, one could reason that Article 184(1) of the Swiss Code of Obligations requires the buyer to become the absolute owner of the goods. This reasoning is flawed as it fails to take into account that at this stage, there is no delivery of the goods, which is undisputedly a non-performance under Articles 97 et seq. of the Swiss Code of Obligations. Therefore, it remains unclear whether a breach of the obligation to transfer the property is even considered to be relevant in this regard. Thus, a more detailed assessment is required to reconcile the seemingly contradictory wording of Articles 184 and 192 et seq. of the Swiss Code of Obligations.
bb) Opinions by the Swiss courts and scholars
106
The uncertainties within the Swiss Code of Obligations cannot be pinpointed to just one provision and must be analyzed holistically. Current Swiss literature and case law offer three different approaches to the interpretation of the seller’s obligation to transfer the property.
107
The first approach considers Swiss law to be carrying on in the tradition of Roman law. According thereto the Swiss Code of Obligations does not contain a relevant obligation to transfer the property in Article 184, or alternatively this obligation is congruent with the obligation under Articles 192 et seq.259 The contract cannot be rescinded due to an error under Article 24 of the Swiss Code of Obligations regarding the property status of the goods, nor are the general remedies for non-performance under Articles 97 et seq.
108
A second approach is taken by Swiss case law and inter alia Alfred Koller and Honsell. Like the first approach, the seller’s contractual liability is considered to be dependent on the eviction or equivalent circumstances and the mere possibility of eviction is not sufficient.262 Yet, the Swiss Supreme Court recognizes the difficult situation this creates for the buyer. The buyer would have to wait to learn whether the actual owner claims the goods. Therefore, the Swiss Supreme Court allows the buyer to rescind the contract due to a fundamental error in respect to the necessary basis for the contract (Grundlagenirrtum) under Article 24(1) No. 4 of the Swiss Code of Obligations.263 The buyer’s error relates to the seller’s inability to provide the buyer with the (unencumbered) property in the goods.264 If the buyer rescinds the contract, he or she is left with no remedies under Articles 195, 196 of the Swiss Code of Obligations, since the contract ceases to exist ex tunc due to the rescission, and the consequences are subject to rules of unjust enrichment instead of rules of contract law.265 Thus, although buyers cannot claim damages based on the contract, they can free themselves of the contract, and generally reclaim the price paid.
109
While both this work and Alfred Koller speak of an “obligation to transfer unencumbered property”, two different concepts are envisaged.266 The concepts differ, because he reaches the conclusion that the obligation to transfer the property is a mere auxiliary obligation, and not a sufficient basis for a performance claim. Moreover, the buyer has no remedies under the Swiss
110
The third approach supports an obligation to transfer unencumbered property in Article 184 of the Swiss Code of Obligations in combination with Articles 97 et seq.268 This approach highlights the wording of Article 184 and deduces an obligation for the seller to provide the buyer with unencumbered property in the goods.269 Supporters argue that Articles 97 et seq. can be applied with regard to this obligation.270 Consequently, the buyer can insist on performance, avoid the contract,271 and claim damages for non-performance based on the failure to transfer property.272 Articles 192 et seq. of the Swiss Code of Obligations merely provide the buyer with an even more advantageous position if the goods are evicted or equivalent circumstances materialize.273 A conflict of the rules in Articles 97 et seq. with Articles 192 et seq. (and potential preemption of the former by the latter) is only considered to exist from the time of eviction274 or is denied completely even after eviction.275 This approach provides the buyer with an arsenal of remedies even before a third party claims the goods and introduces an obligation to transfer unencumbered property.276 This approach is often referred to as the
cc) Position of the Swiss Supreme Court
111
As indicated, supporters of two different approaches claim to have the Swiss Supreme Court on their side. While the Supreme Court undisputedly allowed for rescission under Article 24(1) No. 4 of the Swiss Code of Obligations in 1983,278 a judgment rendered only one year later is quoted to indicate the Supreme Court’s approval of the application of Articles 97 et seq. of the Swiss Code of Obligations regarding the breach of the obligation to transfer the property.279 In my opinion, the latter interpretation is inaccurate. First of all, the judgment concerns the sale of an invalid patent, for which the Swiss Code of Obligations does not provide explicit rules. This compelled the Swiss Supreme Court to find an adequate solution by applying Article 192 of the Swiss Code of Obligations by analogy instead of declaring the sales contract void.280 Although the application of Articles 97 et seq. of the Swiss Code of Obligations was listed by the Supreme Court among the existing opinions on how to treat null patents, it endorsed the application only in case of an explicit or implicit guarantee of the existence of the patent.281 Without such a guarantee, the seller is only liable if third parties claim to have rights regarding the same patent (Article 192 of the Swiss Code of Obligations by analogy).282 In other words, the mere fact that the buyer might not become the owner of the patent is not a breach of contract.
112
While it is obvious that the parties can agree on the liability of the seller in case the buyer does not become the owner of the goods, in the typical sales transaction such an explicit or implicit guarantee is absent. It might be dogmatically possible to find a respective guarantee for the seller’s property based on Article 184 of the Swiss Code of Obligations,283 but this is not indicated by the Court. Moreover, the reasoning of the Court is specific to patents because, with regard to property in the goods, no gaps in the Swiss Code of Obligations were ascertained by the Court. Nothing in the ruling suggests that it may be applied analogously to cases concerning sales of goods in which a third party retains property. Lastly, the Supreme Court
dd) Discussion
113
The arguments in support of each of the three approaches must be assessed. Both the Swiss Supreme Court as well as scholars seem most concerned with the buyer’s weak position as long as the owner of the goods has not (yet) approached the buyer.286
(1) Protection of the buyer before eviction
114
While it is true that buyers would find themselves without remedy if Articles 23 and Articles 97 et seq. of the Swiss Code of Obligations were not applicable, the buyers’ position is not as weak as it might appear at first sight, and especially not for an indefinite amount of time.
115
Article 934(1), sentence 1 of the Swiss Civil Code provides that even if the buyer could not acquire property in good faith, the owner can only claim the goods for five years after the day they were stolen or lost.287 The prevailing
116
If the owner claims the goods from the buyer, Article 934(2) of the Swiss Civil Code allows the buyer who was unaware of the third party right to condition the handing over of the goods to the owner on the payment of the price the buyer has paid if the goods were publicly auctioned or bought from a trading merchant such goods at any stage in the contractual chain.290
117
The buyer is, thus, not without protection under the Swiss Civil Code, due to the time-limit of five years under Article 934(1) and the retention right under Article 934(2). The fact that the Swiss Civil Code, including Article 934,
118
Furthermore, allowing rescission due to a fundamental error under Article 24(1) No. 4 of the Swiss Code of Obligations provides the buyer with a protection that goes further than the protection of his or her permanent possession of the goods. Since Article 31 of the Swiss Code of Obligations only provides for a relative cut-off period of one year, there is no absolute cut-off period with regard to the rescission,295 and only the limitation period of ten years under Article 67(1) of the Swiss Code of Obligations would apply to the claim for repayment of the price.296 The buyer might even rescind the contract five years after the theft despite having become the owner of the goods by that time. This conclusion regarding the possibility of rescission even after the buyer has become the owner only convinces if the buyer had further negative repercussions to fear, but as already stated, apart from
(2) Systematic arguments
119
From a systematic point of view, the first approach has the most merits. This is because the special (sales) rules governing the situation in which a third party has a right in or to the goods prompt the conclusion that under the Swiss Code of Obligations remedies of general contract law (Articles 97 et seq.) and mistake (Article 24(1) No. 4) should not apply to undermine the prerequisites and consequences from the ones envisaged by Articles 192 et seq.298 It is true that the Swiss Supreme Court allows for concurrent application of the rules on liability for non-conforming goods under Articles 197 et seq. and the general non-performance remedies under Articles 97 et seq. However, to avoid diverging results, restrictive requirements, such as the duty to notify the seller of non-conformities, are applied by analogy to Articles 97 et seq. of the Swiss Code of Obligations.299 Yet, no argument regarding the concurrent application of Articles 97 et seq. and Articles 192 et seq. of the Swiss Code of Obligations can be formed from this: Articles 192 et seq. focus on whether the goods have been evicted or similar circumstances are present, while supporters of the concurrent application of Articles 97 et seq. thereby try to extend the buyer’s protection in case the requirements of Articles 192 et seq. are not fulfilled. The concurrent application of Articles 97 et seq. is exactly aimed at bridging the gulf between contract conclusion and eviction. Thus, they strengthen the perceived weak position of buyers if Articles 192 et seq. do not yet apply by providing the latter with remedies. From a systematic point of view, the special rules on sales contracts (Articles 184 et seq. of the Swiss Code of Obligations) should not be undermined by applying other remedies for non-performance that deviate from the result reached by sales law. Therefore, the first approach is more convincing than approaches two and three.
120
Additionally, the headings within the Articles 184 et seq. of the Swiss Code of Obligations provide insight: Article 188 is prefaced by the heading “B. Verpflichtungen des Verkäufers” (B. Obligations of the seller). Within this section on the obligations of the seller, there is no reference to an obliga
121
Furthermore, a systematic argument can be raised against the possibility of rescission under Article 24(1) No. 4 of the Swiss Code of Obligations. Article 195(1) No. 1 of the Swiss Code of Obligations reduces the claim for the purchase price of the buyer against the seller after the goods have been evicted by the amount of benefits the buyer derived from the goods. Yet, by contrast, if the buyer rescinds the contract due to an error under Article 24(1) No. 1 of the Swiss Code of Obligations, the buyer does not have to account for the benefits it received towards the seller.300 This can produce notable practical differences especially if the goods are used for an extended period of time before the buyer rescinds the contract. This conflicts with the rules on sales law and there is no obvious reason why the buyer should in effect receive the use of the goods for free until he or she decides to rescind the contract.
122
The system of the Swiss Code of Obligations could, hence, be interpreted to favor a liability system based on eviction without a relevant obligation to transfer property and respective remedies.
(3) Revealing the respective historical background of the Swiss Code of Obligations
123
The remaining arguments are premised on assertions that are not sufficiently supported by the historical records of Swiss law. Huwiler claims that the wording of Article 184 Swiss Code of Obligations is unequivocal and that the wording was changed in 1905 with a clear intention of the lawmakers to include an obligation to transfer unencumbered property.301 Schönle and Higi support this idea under the Swiss Code of Obligations and claim inter alia that if Articles 97 et seq. were not applicable, the buyer would be deprived of the protection offered under Article 107(2)302 – an argument based on the premise that this provision is applicable. On the other hand, Bucher claims that Article 192 et seq. of the Swiss Code of Obligations
124
These arguments are premised on conclusions that expose the dearth of attention that has thus far been afforded to the travaux préparatoires. Before the Swiss Code of Obligations entered into force, the law of obligations was regulated on a cantonal level. There were different groups of cantons following the legal traditions of different legal systems: The south-western cantons stood in the tradition of French law and the then relatively recent French Civil Code of 1804. The centrally located cantons (Aargau, Bern, Luzern, and Solothurn) were influenced by the Austrian Civil Code of 1811.304 Bluntschli 305 crafted a Civil Code (Privatrechtliches Gesetzbuch) for Zurich306 that influenced the law in cantons like Schaffhausen, Thurgau, and Zug. This Zurich Civil Code is (among others) considered a direct model for the Swiss Code of Obligations.307 The Code produced by Bluntschli is especially remarkable with regard to the matter under discussion here:
Section 1383: “Durch den Kaufvertrag verpflichtet sich der Eine (der Verkäufer), das Eigenthum an einer Sache oder ein anderes Vermögensrecht, z.B. eine Forderung, auf den Anderen (den Käufer) zu übertragen, und dieser hinwieder, jenem einen Preis in Geld dafür zu zahlen.”308
Section 1398: “Der Verkäufer ist verbunden, die verkaufte Sache sammt deren Zubehör und Zuwachs in das Eigenthum und den Besitz des Käufers zu übertragen oder, wenn andere Rechte verkauft sind, ihm diese zu vollem Recht und Genuß zu übergeben.”309
Section 1404: “Der Verkäufer ist verpflichtet, dem Käufer sowohl dafür Gewähr zu leisten, daß dieser das vertragsmäßig veräußerte
125
Regarding the last provision, Bluntschli’s comments highlight that a prior draft version referred to “Eigenthum” (property), which was struck due to obviousness: property was considered to clearly be encompassed by the legal position the buyer was to receive.311 Bluntschli himself considered these rules to be a break with the Roman law structured around a liability for eviction: “Die neuere Rechtsbildung unterscheidet sich darin von dem römischen Recht, daß sie den Verkäufer nicht bloß verpflichtet, die Sache dem Käufer zu überliefern und den ruhigen Besitz derselben zu gewährleisten, sondern unmittelbar auch auf Eigenthumsübertragung gerichtet ist.”312
126
Munzinger, who received the task to draft a uniform Swiss Code of Obligations in 1868 from the Schweizer Juristenverein, explicitly praised the Zurich Civil Code, and even considered following large parts of it.313 In Munzinger’s draft of 1863, he stood by his word and copied the provisions on the obligation to transfer property and the liability for legal defects under sections 1398 and 1404 of the Zurich Civil Code verbatim in sections 205 and 210.314 Yet, the next draft of 1869 implemented the results of discussions that had taken place since 1863, and formulated the respective provisions very differently. It had no provision containing an obligation to transfer the property in the section on the obligations of the seller, and it reverted to eviction as the central element of liability for legal defects.315 The exact motives for this change remain unclear, but Meili plausibly opines that this could have been a compromise found with regard to the cantons that were
127
Moreover, the headings and the structure that evolved under the aegis of Munzinger and later Fick can also be interpreted to signify a departure from the Zurich Civil Code and its obligation to transfer the property.
| Zurich Civil Code 1854/1856 | Swiss Code of Obligations 1881 (today’s numbering of Articles in brackets) |
|---|---|
| Section 1383: Siebenter Abschnitt. Vom Kauf und Verkauf. Erstes Kapitel. Abschließung des Kaufvertrags | Article 229 (184): I. Allgemeine Bestimmungen |
| Section 1398: Zweites Kapitel. Wirkungen des Kaufvertrags.A. Verpflichtungen des Verkäufers [i.e., obligations of the seller, this section contained a specific obligation of the seller to transfer property] | Article 232 (188): Verpflichtungen des Verkäufers [i.e., obligations of the seller, this section contains specifics of the obligations to hand over the goods but does not mention an obligation to transfer property] |
| Section 1404: 1. Gewährleistung des veräußerten Rechtes und Besitzes | Article 235 (192): II. Gewährleistung des veräusserten Rechtes |
128
Section 1398 of the Zurich Civil Code contained a provision laying out the seller’s obligation to transfer the property under the heading “Verpflichtungen des Verkäufers” (obligations of the seller). However, no parallel section can be found in the Articles 232 et seq. of the Swiss Code of Obligations 1881 (today’s Articles 188 et seq.). Only the general rule found in section 1383 of the Zurich Civil Code which may have only served as a definition of what a sales contract is, was acceptable enough to find its way into Article 229 of the Swiss Code of Obligation 1881 (today’s Article 184). Also, the difference with regard to warranties under section 1404 of the Zurich Civil Code in contrast to Article 235 of the Swiss Code of Obligations 1881 is striking, as far as the latter speaks of eviction while section 1404 of the Zurich Civil Code specifies that the buyer has to actually receive the sold right.322 Hence, within the section on the obligations of the seller, there is no reference to an obligation to transfer the property, but merely reference to eviction in Articles 235 et seq. of the Swiss Code of Obligations 1881. The comparison of the Swiss Code of Obligations against the background of existing cantonal laws at the time of drafting, thus, militates in favor of interpreting the Swiss Code of Obligations to structure the seller’s liability around eviction, and against finding an obligation to transfer unencumbered property.
129
Huwiler emphasizes the change in the German wording in 1905 to argue that the Article 184 of the Swiss Code of Obligations contains an obligation to transfer unencumbered property.323 The German wording was changed from “Durch den Kaufvertrag verpflichtet sich der Verkäufer, dem Käufer
130
Consequently, the arguments under the Swiss Code of Obligations that a preemption of Articles 97 et seq. by Articles 192 et seq. would deprive the buyer of the protection provided by the former provisions327 is based on the wrong premise that the latter provision is even applicable in cases of a lack of property on the seller’s part. In contrast, the historical background strengthens the premise that the starting point of the Swiss Code of Obligations is an eviction-based liability system. The argument against the second and third approach that the results of the eviction-based liability are circumvented,328 thus, becomes more persuasive. Some of the remaining uncertainty for the buyer is alleviated by the five-year period under Article 934(1), (2) of the Swiss Civil Code. The time limitation restricts the buyer’s uncertainty.
ee) Summary regarding the obligation to transfer the property
131
Swiss law does not contain an obligation to transfer unencumbered property, but is rooted in an eviction-based liability system. Seen from a practical point of view, the Swiss Supreme Court nevertheless allows the buyer to rescind the contract in case the seller cannot provide him or her with unencumbered property under Article 24(1) No. 4 of the Swiss Code of Obligations. Comparable to French law, Swiss sales law and the remedies for non-performance are an expression of an eviction-based liability system,
ff) Nullity due to impossibility and Article 20 of the Swiss Code of Obligations
132
Comparable to Article 1599 of the French Civil Code, Swiss law provides that some contracts which are impossible to perform will be deemed null. Yet, this is less relevant regarding the obligation to transfer the property than under French law. Article 20(1) of the Swiss Code of Obligations reads: “Ein Vertrag, der einen unmöglichen [...] Inhalt hat [...], ist nichtig.” This is based on the idea imposibilium nulla obligatio. With respect to sales contracts, several constellations are considered under this provision. In the case of initial, objective impossibility (anfängliche, objektive Unmöglichkeit), i.e., if the obligation cannot be performed by anybody at the time the contract is concluded, the contract is null ex tunc.329 An example is a sales contract concerning a (at the time of contract conclusion) non-existing or no longer existing good.330 This stands in contrast to a subjective impossibility (subjektive Unmöglichkeit), where there is at least one person that could fulfill the contract (but may be unwilling to do so).331 Such a contract is not null under Article 20(1) of the Swiss Code of Obligations, which is why the contractual remedies apply.332 Likewise, a subsequent, objective impossibility (i.e., after contract conclusion) does not render the contract null, and is governed by Article 119 of the Swiss Code of Obligations.333
133
The existence or non-existence of an obligation to transfer unencumbered property has little practical implications under Article 20 of the Swiss Code of Obligations: In case of initial, objective impossibility, the goods cannot be delivered or handed over. Therefore, the legal consequence of nullity cannot be solely attributed to the impossibility of transferring of property, but could also be attributable to the impossibility of delivering the goods. The only conceivable consequence could follow in cases of initial subjective impossibility in which the seller cannot transfer the property but has delivered the goods. Yet, under such circumstances, the application of Article 119 of the Swiss Code of Obligations and Articles 97 et seq. of the Swiss Code of Obligations would raise the same concerns that have led to the above conclusion that they are preempted in cases of a mere lack of property without eviction.334 In other words, the application of Article 119 and Articles 97 et seq. would require the impossibility of performing the contractual obligation. This obligation could only be an obligation to transfer unencumbered property which does not exist under Swiss law.
c) English law
134
Common law jurisdictions have not always considered it necessary for the seller to guarantee the transfer of best title in the goods since sales mostly took place at markets.335 Under the (now repealed) doctrine of market overt a buyer could obtain good title in the goods despite a prior theft if the goods were sold in specific markets between sunrise and sunset.336 This protected the buyer sufficiently against prior owners of the goods.337 Hence, no warranty as to the quality of the title of the goods was considered to exist and the seller would generally only transfer the title he or she had.
135
When sales occurred more frequently outside the market overt, the protection of the buyer was gradually expanded.338 Courts found a seller to be liable toward the buyer if the former had knowingly misrepresented that he or she was selling goods belonging to a third party.339 This claim was based on fraud and was not a contractual claim,340 however, the alternative ground of a contractual claim was also recognized: Lord Holt in Medina v Houghton
136
Parke B in Morley v Attenborough analyzed the prior case law and scholarly work in detail to find that there was evidence for an implied warranty for the best title in the goods.342 However, this case concerned the sale by a pawnbroker where such an implied warranty could not be assumed to exist. In Eichholz v Bannister, the judges appear to have interpreted Morley v Attenborough as a rather untypical case, noting that “there can seldom be a sale of goods where one of these circumstances [yielding an implied warranty for title] is not present.”343 Thereby, the rule that the seller does not warrant the title of the goods was reversed, unless specific circumstances require a finding to the contrary.344 Nevertheless, it remained the object of resistance.345
aa) Section 12(1) of the Sale of Goods Act 1893 and 1979
137
While Eichholz v Bannister still contained limitations, and sales contracts to other effects were “seldom” conceivable, section 12 of the Sale of Goods Act 1893 clarified that unless there is intention to the contrary, there is an “implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and that in the case of an agreement to sell he will have a right to sell the goods at the time when the property is to pass.” A condition is such an important term of the contract that its breach allows the aggrieved party to treat the contract as repudiated.346 This stands in contrast to a mere warranty, which only gives rise to a claim for damages.347
138
Notably, the wording of section 12(1) of the Sale of Goods Act is silent regarding “title”, “ownership”, or “property” and instead speaks of the “right to sell”. Moreover, it does not require the seller to fulfill the necessary acts to transfer property under the applicable law, nor does it regulate when the seller has to transfer the property.348 It cannot be characterized as an obligation to fulfill the necessary acts for the transfer of property. However, considering its function, section 12(1) of the Sale of Goods Act 1979 might fulfill the purposes of an obligation to transfer unencumbered property and might even go further than such an obligation. This is because it is not entirely clear under the Sale of Goods Act 1979 whether section 12(1) can also
bb) Failure of consideration
139
The seller’s undertaking with regard to the quality of the title is even considered to transcend a contractual condition, because the handing over of goods, within which a third party has a better title, simultaneously leads to a total failure of consideration.353 In Rowland v Divall,354 a stolen car was sold and subsequently resold to a sub-buyer. The police seized the car due to a prior theft of the car, and the buyer reimbursed the sub-buyer. The buyer claimed repayment of the price from the seller, who had no knowledge of the theft. Atkin LJ argued:
“It seems to me that in this case there has been a total failure of consideration, that is to say that the buyer has not got any part of that for which he paid the purchase money. He paid the money in order that he might get the property, and he has not got it. It is true that the seller delivered to him the de facto possession, but the seller had not
141
The failure of consideration results in a full (restitutionary) action for repayment of the purchase price, while the buyer does not have to account for any benefits that he or she (or their sub-buyers) may have received from the possession of the goods.356 This result is criticized as attributing too much (dogmatic) importance to the concept of property and paying insufficient attention to the fact that the buyer purchases goods to use them: The mere lack of good title does not prevent use of the goods (at least temporarily).357 Nevertheless, the case illustrates the current law since respective reforms were not yet successful.358 Hence, English law (and the legal systems that follow English law in this regard)359 endows the buyer with the possibility to plead failure of consideration if property could not be transferred by the seller.
cc) Summary
141
English law does not contain an explicit obligation to fulfill the necessary acts for the transfer of property, but through section 12(1) of the Sale of Goods Act 1979 and the notion of a total failure of consideration in the case of a sale of goods belonging to a third party, a functional equivalent to an obligation to transfer unencumbered property exists under English law.
67 3. The breakthrough of German law?
142
German law is often singled out with regard to the obligation to transfer the property. This is less so because of the wording of section 433(1), sentence 1 of the German Civil Code (“der Verkäufer einer Sache [wird] verpflichtet, dem Käufer ... das Eigentum an der Sache zu verschaffen”), which can also be found elsewhere,360 but rather due to the actual interpretation and the respective remedies available to the buyer.
a) Germanic and Franconian law
143
Germanic and Franconian361 law have not always followed the approach found in today’s section 433(1) of the German Civil Code. Pre-unification of Germany, the different German territories had differing approaches, although they were mostly rooted in Roman law with liability based on eviction.362 Germanic and Franconian law did not contain an obligation to transfer property free of rights and claims of third parties.363 As far as scholars have argued that an obligation to transfer the property existed, Rabel maintained that this can only be considered true in light of a “relative” notion of property.364 If such a definition of property were assumed, one could consider Germanic and Franconian law to have contained an obligation to transfer the property. This obligation differs, however, from what Rabel and this work refers to as an obligation to transfer unencumbered property. Notwithstanding, under Germanic law it was considered self-evident that a transaction led to the transfer of the seller’s legal position to the buyer.365 The obligation to fulfil the necessary acts to transfer property existed under Germanic law.366 The acts necessary were, however, sometimes very difficult to fulfill if the seller had no property in the goods, which is why Rabel considers the obligation to be de facto more far reaching than a mere obligation to fulfill the necessary acts for the transfer of property.367
68 b) The German Civil Code of 1900
144
The wording of Article 422 of the Dresden Draft 1866 (equivalent to today’s section 433 of the German Civil Code) was still slightly ambiguous and did not explicitly refer to an obligation to transfer the property:
“Durch den Kaufvertrag wird der Verkäufer verpflichtet, dem Käufer [...] den Kaufgegenstand als eigen zu überlassen und, wenn dieser eine Sache ist, dem Käufer zu übergeben.”368
145
Yet, the discussion whether a sales contract contained an obligation of the seller to transfer property was a central element in the genesis of the provision.369 The majority of drafters believed the future law should break with the Roman law tradition and its reliance on eviction.370 With this break, the point of departure in cases of legal defects changed: It was no longer decisive whether a third party actually claimed to be owner or have rights in the goods or whether any of the limited exceptions to this requirement were fulfilled. Instead, the mere existence of a third party right or a third party being the owner of the goods without the possibility of the buyer to acquire property bona fide was considered to lead to a breach of contract.
146
Eight years later in 1874, Eck published a highly influential piece on the obligation of the seller to transfer the property under Roman law.371 In it, he argued that even under Roman law, there was a tendency towards recognizing the seller’s obligation to transfer unencumbered property, but concluded that the Romans were not able to bring this evolution to the final form.372 Irrespective of whether one agrees with this interpretation of Roman law,373 German law during that time was dominated by Pandectistic thought. The linkage of potentially new ideas to Roman law may have been necessary to establish the rule as a serious possibility for the legal discussion.374
147
The ideas to either break with Roman law or, alternatively, that it would be in the spirit of Roman law to complete the obligation and constitute an obligation to transfer unencumbered property, gained widespread support and led to section 433(1), sentence 1 of the German Civil Code in 1900.375 With
148
Yet, section 440(2) of the German Civil Code 1900 provided: “Ist eine bewegliche Sache verkauft und dem Käufer zum Zwecke der Eigentumsübertragung übergeben worden, so kann der Käufer wegen des Rechtes eines Dritten, das zum Besitze der Sache berechtigt, Schadensersatz wegen Nichterfüllung nur verlangen, wenn er die Sache dem Dritten mit Rücksicht auf dessen Recht herausgegeben hat oder sie dem Verkäufer zurückgewährt oder wenn die Sache untergegangen ist.” Damages for non-performance were only available if the buyer had acknowledged a third party’s right and given him or her the goods, or if the goods were destroyed. The mere existence of a third party right was insufficient to claim damages for non-performance. Therefore, it was disputed whether the provision kept an eviction-liability system alive.377 This discussion lost its relevance when the reform of the German Civil Code in 2002 silently removed the limitation to damages claims.
149
The 2002 reform additionally unified the remedies available for breaches of contract. Thereby, it became less relevant what kind of a breach of contract had taken place. It has since then, however, been disputed under the German Civil Code whether the seller has breached section 433 or section 435 when a third party has property in the goods and the buyer cannot become owner by the rules of bona fide acquisition under sections 932 et seq. The opening provision on sales contracts, section 433 of the German Civil Code, contains the seller’s obligation to transfer the property. Section 435, sentence 1 of the German Civil Code provides that a legal defect exists if a third party has rights regarding the goods that were not provided for in the contract. If the buyer does not receive unencumbered property because the seller is not the owner of the goods, it is disputed whether section 433 or section 435, sentence 1 of the German Civil Code is breached.378 As will be seen below, this dispute has structural similarities to the dispute under the CISG on the relationship between Articles 30 and 41. Under the German Civil Code, the dispute yields very little differences in practical results, since the remedies for both kinds of breaches are generally the same. The only practical dif
c) Breakthrough of German law by introducing the obligation to transfer the property?
150
At first sight, the introduction of the obligation to transfer the property under section 433(1), sentence 1 of the German Civil Code could be celebrated as a breakthrough.381 Yet, the comparative perspective shows that other legal systems had already before 1900 protected the buyer through remedies outside of sales law in case of existing third party rights even if they have not been asserted against him or her. Even more remarkably, the Civil Code (Privatrechtliches Gesetzbuch) for Zurich of 1854/56 already contained the obligation to transfer property implemented in Germany just short of fifty years later.382 Yet, the breakthrough was the introduction of contractual remedies that applied to the failure to transfer property, regardless of whether a third party actually raised his or her right. The German law, therefore, remains an important stepping-stone toward the solution found under the CISG.
4. Summary
151
The seller’s obligation to transfer the property in the goods and the liability for third party rights are intertwined in national laws. The general statement that the obligation to transfer the property is central in sales law requires further differentiation, already introduced by Rabel in “Das Recht des Warenkaufs” (obligation to fulfill the necessary acts for the transfer of property and obligation to transfer unencumbered property). The relationship varies, and national laws differ on whether a buyer can rely on not having become
| 197 | See generally, De Zulueta, The Roman Law of Sale, passim; Kaser, Eigentum und Besitz, passim; Rabel, Mangels im Rechte, passim. Cf. regarding the difficulties to depict the complex Roman law in this regard, Nörr, 121 ZRG RA (2004), 153 et seq. |
| 198 | See above paras. 78 et seq. |
| 199 | Gaius Book 4 131a; Paul. Sent. 1. 13a. 4; Rabel, Recht des Warenkaufs II, p. 314; Peters, 96 ZRG RA (1979), 173, 178–182; Zimmermann, p. 278; De Zulueta, p. 36 (with an English translation of the respective section in Gaius, and an English translation of Paul’s sentences on p. 71); undecided, Brägger, p. 44. |
| 200 | De Zulueta, p. 36; Powell, pp. 78, 86; Windscheid/Kipp, p. 652; Brägger, p. 119; Peters, 96 ZRG RA (1979), 173, 181. |
| 201 | Zimmermann, p. 278. It is not a contradiction to this statement that the seller who knew that he sells goods belonging to a third party incurred liability, cf. Powell, pp. 78, 87; Peters, 96 ZRG RA (1979), 173, 197, 199. |
| 202 | Peters, 96 ZRG RA (1979), 173, 174. Notably, Ernst, Rechtsmängelhaftung, passim does not consider the obligation to transfer unencumbered property to be a further step in the development, but rather a completely different approach. |
| 203 | See comprehensively on the auctoritas, Brägger, passim with references to the (few) adverse opinions on pp. 228 et seq.; Zimmermann, pp. 294–295. It should be noted that this was not a contractual liability. The latter type of liability did not even exist at the time, yet, see references by Brägger, pp. 163–168 who concludes that no clear classification is possible. |
| 204 | Muirhead/Goudy/Grant, p. 126; De Zulueta, p. 43; Brägger, pp. 66 et seq., 81 et seq. |
| 205 | De Zulueta, p. 43; Brägger, p. 40; Zimmermann, p. 294. |
| 206 | In favor of the former interpretation, Eck, pp. 3–7. Contra and in favor of the latter interpretation, Rabel, Mangels im Rechte, p. 2; also, Peters, 96 ZRG RA (1979), 173, 200; Kaser, Eigentum und Besitz, p. 116; also, recently Brägger, pp. 47–52. |
| 207 | Rabel, Mangels im Rechte, pp. 7, 14–20 (regarding the details of what was expected of the seller: merely supporting or replacing the buyer in this process against the third party), 20–23 (regarding the possibility to sue or pressure the seller to render the required action); Powell, pp. 78, 83; Brägger, pp. 120 et seq. |
| 208 | Kaser, 102 ZRG RA (1985), 1, 11; Powell, pp. 78, 84; see also Muirhead/Goudy/Grant, pp. 134–135. |
| 209 | Powell, pp. 78, 84; Kaser, Eigentum und Besitz, p. 134; this aspect might have faded with the pure tracing of the goods with the rei vindicatio, Kaser, 102 ZRG RA (1985), 1, 14. Notably, Brägger, Actio auctoritatis, seems not to draw such conclusions and does not mention this potential background at all. |
| 210 | Cf. Rabel, Mangels im Rechte, pp. 11 fn. 1, 20. |
| 211 | Rabel, Mangels im Rechte, pp. 20–21; Brägger, p. 119 (“Diese Beistandsleistung ist der zentrale Inhalt der auctoritas-Pflicht des Manzipanten”). Nevertheless, it appears unclear whether the obligation of the seller was directly enforceable, Brägger, pp. 134–135 with further references. |
| 212 | Brägger, pp. 45–46; Zimmermann, p. 295. |
| 213 | Examples for other sales transactions are transactions under which the sold goods were res nec mancipi, i.e., certain goods of everyday life that did not require the formalities brought by the manispacio, or the transaction involving a peregrin (peregrinus), Kaser, Eigentum und Besitz, p. 124. |
| 214 | A stipulatio was a formal contract concluded orally subject to requirements that changed over the course of Roman law and are disputed in the details, cf. Zimmermann, pp. 68 et seq. |
| 215 | Kaser/Knütel/Lohsse, § 52 para. 29; De Zulueta, p. 43. |
| 216 | De Zulueta, p. 43. |
| 217 | Zimmermann, p. 296; Kaser, Eigentum und Besitz, pp. 203 et seq.; Kaser/Knütel/Lohsse, § 52 para. 29. |
| 218 | De Zulueta, p. 44. |
| 219 | Rabel, Mangels im Rechte, p. 28 (“Dagegen wird mit Recht aus den erhaltenen Formularen abgenommen, daß von solcher [Defensionsp]flicht in den Stipulationen, die wir als stip. habere licere und duplae kennen, nicht mehr die Rede war.”); Brägger, pp. 16, 132 summarizes that the auctoritas-liability and the obligation to defend became practically irrelevant after the classical period. |
| 220 | E. Huber, Vol. IV, pp. 853–854; Kaser/Knütel/Lohsse, § 52 para. 32; De Zulueta, p. 44, Watson, 2 Law and History Review (1984), 1, 10. |
| 221 | Rabel, Mangels im Rechte, p. 101. |
| 222 | Further discussion below paras. 144 et seq. |
| 223 | See below paras. 144 et seq. |
| 224 | See above paras. 42 et seq. |
| 225 | Repgen, pp. 203, 209. |
| 226 | Peters, 96 ZRG RA (1979), 173, 174. |
| 227 | See above para. 44. |
| 228 | Peters, 96 ZRG RA (1979), 173, 175. |
| 229 | Peters, 96 ZRG RA (1979), 173, 198; similarly, Zimmermann, p. 280 emphasizing that both the seller and the buyer may be honest and not have known about the rights of the third party, which necessitates striking a difficult balance between two innocent parties. |
| 230 | Peters, 96 ZRG RA (1979), 173, 199. |
| 231 | Zimmermann, p. 293. |
| 232 | Kaser/Knütel/Lohsse, § 35 paras. 7 et seq. |
| 233 | Kaser, Eigentum und Besitz, pp. 293–302; Kaser/Knütel/Lohsse, § 35 para. 8. |
| 234 | Malaurie/Aynès/Gautier, p. 55 para. 54: “Malgré son évolution tourmentée et sa diversification, l’élément constant de la vente est sa définition. Elle est le contrat par lequel la propriété d’une chose est transférée à un acquéreur, en contrepartie d’une somme d’argent.” |
| 235 | Art. 1582(1) French Civil Code: “La vente est une convention par laquelle l’un s’oblige à livrer une chose, et l’autre à la payer.” |
| 236 | See for details Malaurie/Aynès/Gautier, pp. 236 et seq., paras. 281 et seq. Also highlighting the visible Roman roots, Jansen/Zimmermann/Rüfner, p. 2018 para. 6. |
| 237 | Malaurie/Aynès/Gautier, p. 235 paras. 277–278. |
| 238 | Malaurie/Aynès/Gautier, p. 235 para. 280. |
| 239 | In contrast, Malaurie/Aynès/Gautier, p. 145 claim that such a provision corresponds to common sense. The underlying idea is also followed by Québec, Art. 1713 Civil Code Québec: “The sale of property by a person other than the owner or other than a person charged with its sale or authorized to sell it may be declared null. The sale may not be declared null, however, if the seller becomes the owner of the property.” Notably, property is used in this provision to refer to the goods, while owner refers to the person that has as property in the goods according to the terminology used in this work. |
| 240 | Malaurie/Aynès/Gautier, p. 184 para. 222. |
| 241 | Wolff, Institutiones, p. 324 § 587; Bergmann, RabelsZ 2010, 45. |
| 242 | Wolff, Jus naturae, p. 7 § 13; Malaurie/Aynès/Gautier, p. 184, para. 222; Rabel, Mangels im Rechte, p. 272. But see Cl. Witz, FS Jahr, pp. 533, 536 who emphasizes a fiction of a handing over rather than the full discard of the requirement of handing over the goods, and on pp. 536–538 he explains that there are important exceptions to the principle of transfer solo consensu (for example, in the case of the sale of unidentified goods and sales under retention-of-title-clauses) that might even supersede the general principle. |
| 243 | Cf. Bergmann, 74 RabelsZ (2010), 25, 45–47. |
| 244 | Malaurie/Aynès/Gautier, pp. 145–148. |
| 245 | Malaurie/Aynès/Gautier, p. 147 para. 172. This might even prevent the second buyer in a case of double sales to rely on Art. 1599 French Civil Code if he or she acquired possession first under Art. 1198 French Civil Code even though the goods were already owned by the first buyer at that point in time, Malaurie/Aynès/Gautier, p. 145 para. 167. |
| 246 | Malaurie/Aynès/Gautier, p. 146 paras. 169 et seq. |
| 247 | For example, French Supreme Court, 15 October 2013, 12-19.756. |
| 248 | Malaurie/Aynès/Gautier, pp. 149 para. 175. |
| 249 | Malaurie/Aynès/Gautier, p. 150 para. 176. |
| 250 | Court of Appeal Orléans, 26 October 1967, D. 1968 Jur. 210; Hornung, p. 65. |
| 251 | Hornung, p. 65 (positives Interesse). |
| 252 | Malaurie/Aynès/Gautier, p. 150 para. 176 No. 2. |
| 253 | BSK OR I/Honsell, Art. 192 OR para. 1; Bader, SJZ 1923/24, 306; Fargnoli, pp. 11, 16 para. 41; see already Rabel, Mangels im Rechte, p. 285 fn. 2 regarding the version of 1881 of the Swiss Code of Obligations. |
| 254 | “A contract of sale is a contract whereby the seller undertakes to deliver the item sold and transfer property of it to the buyer [...].” This is the non-binding English translation of the Code of Obligations provided by the State administration in Switzerland, which is available on the Swiss government’s website. |
| 255 | For example, Brägger, p. 15. |
| 256 | This is the non-binding English translation of the Code of Obligations provided by the State administration in Switzerland, which is available on the Swiss government’s website. |
| 257 | Rightfully critical on the apparent tension in the wording, Rabel, Mangels im Rechte, p. 285 fn. 2 and also Bader, SJZ 1923/24, 306. For the obligation to transfer unencumbered property, see above para. 79. |
| 258 | KuKoOR/Kikinis, Art. 184 OR para. 30; Atamer/Eggen, Zeitschrift des Bernischen Juristenvereins 2017, 731, 777. |
| 259 | BSK OR I/Schwenzer/Fountoulakis, vor Art. 23–31 OR para. 12; Schwenzer/Fountoulakis, OR AT, para. 39.42; Bucher, recht 1996, 178, 185; von Büren, pp. 15–16; Marti, pp. 63, 74 para. 216. |
| 260 | BSK OR I/Schwenzer/Fountoulakis, vor Art. 23–31 OR para. 12; Bucher, recht 1996, 178, 185. |
| 261 | von Büren, p. 16; Müller-Chen/Girsberger/Droese, p. 43 para. 38. |
| 262 | A. Koller, § 4 para. 118; Honsell, OR BT, p. 82; District Court Affoltern a.A., 6 July 1972, SJZ 1972, 358 et seq.; indirectly, Swiss Supreme Court, 25 October 1983, BGE 109 II 319, 322. |
| 263 | Swiss Supreme Court, 25 October 1983, BGE 109 II 319, 322: “[Parallele Anwendung der Anfechtung und Gewährleistung] drängt sich diesfalls sogar auf, da der Käufer die Entwehrung durch den rechtmässigen Eigentümer abwarten, folglich die damit verbundenen Nachteile während unbestimmter Zeit auf sich nehmen müsste, wenn er sich trotz eines Willensmangels nur auf rechtlich mangelhafte Erfüllung berufen könnte.”; A. Koller, § 4 para. 118. |
| 264 | Swiss Supreme Court, 25 October 1983, BGE 109 II 319, 325–326. |
| 265 | Swiss Supreme Court, 25 October 1983, BGE 109 II 319, 327; Honsell, OR BT, p. 77. |
| 266 | For the understanding of an obligation to transfer unencumbered property employed in this work, see above para. 79. |
| 267 | A. Koller, paras. 75 (“blosse Nebenpflicht ohne Forderungscharakter”), 120. |
| 268 | Huguenin, OR AT/BT, paras. 2433, 2567; BK/Giger, Art. 184 OR para. 90, Art. 192 OR paras. 7, 8; Keller/Siehr, p. 53; BSK ZGB II/Huwiler, Art. 562 ZGB para. 16; ZK/Schönle/Higi, Art. 192 OR paras. 8–14; potentially, Bader, SJZ 1923/24, 306, 307. |
| 269 | BSK ZGB II/Huwiler, Art. 562 ZGB para. 16 (“eindeutige[r] Gesetzeswortlaut”). |
| 270 | ZK/Schönle/Higi, Art. 192 OR paras. 8, 9. |
| 271 | It is disputed whether this can be based on Art. 97 Swiss Code of Obligations or only on Art. 107(2) Swiss Code of Obligations, cf. with further references, ZK/Schönle/Higi, Art. 192 OR para. 9. |
| 272 | ZK/Schönle/Higi, Art. 192 OR para. 9. |
| 273 | BK/Giger, Art. 192 OR para. 7; ZK/Schönle/Higi, Art. 192 OR para. 11 even allow for a parallel application of Arts. 97 et seq. Swiss Code of Obligations if the goods have been evicted. |
| 274 | ZK/Schönle/Higi, Art. 192 OR para. 10. |
| 275 | BK/Giger, Art. 192, para. 9 and Keller/Siehr, p. 70 claiming that even after eviction, buyers can decide on the remedy they would like to pursue, since buyers are allowed not to rely on the privileges provided by Arts. 192 et seq. over Arts. 97 et seq. Swiss Code of Obligations. |
| 276 | For a definition of this obligation, see above para. 79. |
| 277 | For example, Huguenin, OR BT, para. 251 cites the Swiss Supreme Court in this fashion. |
| 278 | Swiss Supreme Court, 25 October 1983, BGE 109 II 319, 322. |
| 279 | Swiss Supreme Court, 21 February 1984, BGE 110 II 239; for example, cited by Huguenin, OR BT, para. 251. |
| 280 | Swiss Supreme Court, 21 February 1984, BGE 110 II 239, 242. |
| 281 | Swiss Supreme Court, 21 February 1984, BGE 110 II 239, 243. |
| 282 | Swiss Supreme Court, 21 February 1984, BGE 110 II 239, 243. |
| 283 | ZK/Schönle/Higi, Art. 192 OR para. 9. |
| 284 | Swiss Supreme Court, 25 October 1983, BGE 109 II 319, 322. |
| 285 | Swiss Supreme Court, 25 October 1983, BGE 109 II 319, 322: “[Parallele Anwendung Anfechtung/Gewährleistung] drängt sich diesfalls sogar auf, da der Käufer die Entwehrung durch den rechtmässigen Eigentümer abwarten, folglich die damit verbundenen Nachteile während unbestimmter Zeit auf sich nehmen müsste, wenn er sich trotz eines Willensmangels nur auf rechtlich mangelhafte Erfüllung berufen könnte.” |
| 286 | Swiss Supreme Court, 25 October 1983, BGE 109 II 319, 322; BK/Giger, Art. 192 OR para. 8. |
| 287 | Art. 934(1), s. 1 Swiss Civil Code “Der Besitzer, dem eine bewegliche Sache gestohlen wird oder verloren geht oder sonst wider seinen Willen abhanden kommt, kann sie während fünf Jahren jedem Empfänger abfordern.” |
| 288 | BSK ZGB II/Ernst/Zogg, Art. 934 ZGB para. 15; BK/Stark/Lindenmann, Art. 934 ZGB para. 29; contra, Sutter-Somm, SPR V/1, para. 64. The Swiss Supreme Court did not have to address the discussion but acknowledged its existence in Swiss Supreme Court, 13 December 1968, BGE 94 II 297, sub. E. 6., but see Swiss Supreme Court, 26 March 1981, SJ 1981, 449, 453 sub. E. 4a. |
| 289 | Arguing that good faith must be present when the five years under Art. 934(1) Swiss Civil Code elapse ZK/Haab/Simonius/Scherrer/Zobl, Art. 714 ZGB para. 68, while KuKoZGB/Baumann Lorant, Art. 714 ZGB paras. 5, 6 highlights the moment when the person takes possession to determine whether good faith was present. |
| 290 | Art. 934(2) Swiss Civil Code: “Ist die Sache öffentlich versteigert oder auf dem Markt oder durch einen Kaufmann, der mit Waren der gleichen Art handelt, übertragen worden, so kann sie dem ersten und jedem spätern gutgläubigen Empfänger nur gegen Vergütung des von ihm bezahlten Preises abgefordert werden.” |
| 291 | Wiegand, Sachenrecht im Obligationenrecht, pp. 107, 123. The draft of 1871, in contrast, did not contain an equivalent provision. |
| 292 | Art. 206 Swiss Code of Obligations 1881: “Gestohlene oder verlorene Sachen können binnen fünf Jahren, vom Tage des Abhandenkommens an gerechnet, jedem Inhaber abverlangt werden. Ist eine solche Sache an öffentlicher Steigerung, auf einem Markte oder von einem Kaufmanne, welcher mit derartigen Waaren handelt, gutgläubig erworben worden, so muss sie nur gegen Vergütung des dafür bezahlten Preises herausgegeben werden.”; Wiegand, Sachenrecht im Obligationenrecht, pp. 107, 125. |
| 293 | Swiss Supreme Court, 25 October 1983, BGE 109 II 319, 326. |
| 294 | In a similar vein, HKK/Ernst, §§ 434, 435 para. 29 mentions the approach underlying Art. 934(1) Swiss Civil Code to render less relevant inter alia the far-reaching remedies for breaches of an obligation to transfer the property. |
| 295 | Swiss Supreme Court, 7 June 1988, BGE 114 II 131. |
| 296 | It is disputed when the ten-year period starts to run: The Swiss Supreme Court, 7 June 1988, BGE 114 II 131, 142, has decided that it should start when the payment is effected, since the rescission erases the contract and with it the cause for the payment ex tunc. In contrast, the majority of scholars argue that the relevant point in time is when the buyer declares the rescission, see BSK OR I/Huwiler, Art. 67 OR para. 5 with further references. |
| 297 | A reasonable restriction of the buyer’s option to rescind the contract could be found in Art. 25 Swiss Code of Obligations if one argues that the advantages of the buyer bear no proportion to the disadvantages the seller might face, especially if the latter did not receive the goods in good faith. The owner of the goods could in this case claim the goods indefinitely due to Art. 936 Swiss Civil Code from the seller. |
| 298 | BSK OR I/Wiegand, Einleitung zu Art. 97–109 OR para. 16; Schwenzer/Fountoulakis, OR AT, para. 39.42. |
| 299 | See Huguenin, OR AT/BT, para. 2696 with further references. |
| 300 | ZK/Schönle/Higi, Art. 195 OR paras. 14–15. |
| 301 | BSK ZGB II/Huwiler, Art. 562 ZGB para. 16. Highlighting the clear change in wording, also Bader, SJZ 1923/24, 306. |
| 302 | ZK/Schönle/Higi, Art. 192 OR para. 12. |
| 303 | Bucher, recht 1996, 178, 186. |
| 304 | Regarding the influence on the Civil Code in Bern, Wolf, FS Eccher, pp. 1299, 1308–1309; regarding the influence on other cantons Aargau, Luzern, Solothurn, p. 1312. |
| 305 | Notwithstanding his progressive thinking in private law, Bluntschli’s oeuvre especially in public law is stained by at least ambiguous and partly disconcerting statements with regard to races, Jews, and women, see Seen, 110 ZRG GA (1993), 372 et seq. |
| 306 | Bluntschli, Privatrechtliches Gesetzbuch für den Kanton Zürich: mit Erläuterungen: Das zürcherische Obligationenrecht, passim. |
| 307 | BSK OR I/Zellweger-Gutknecht, Einl. vor Art. 1ff. OR para. 13. The potentially underestimated influence of the French Civil Code is emphasized by Bucher, Code Civil, pp. 139 et seq. |
| 308 | Bluntschli, p. 361. |
| 309 | Bluntschli, p. 374. |
| 310 | Bluntschli, p. 380. |
| 311 | Bluntschli, p. 380. |
| 312 | Bluntschli, p. 374. My translation: The modern legislation differs from Roman law in that it does not only oblige the seller to deliver the thing to the buyer and to ensure the quiet possession of it, but is also directly geared to the transfer of property. |
| 313 | Munzinger, p. 57, printed in Fasel, pp. 17, 52. |
| 314 | “§ 205: Der Verkäufer ist verbunden, die verkaufte Sache sammt deren Zubehörde und Zuwachs in das Eigenthum und den Besitz des Käufers zu übertragen oder, wenn andere Rechte verkauft sind, ihm diese zu vollem Recht und Genuss zu übergeben. [...] § 210: Der Verkäufer ist verpflichtet, dem Käufer sowohl dafür Gewähr zu leisten, dass dieser das vertragsmässig veräusserte Recht wirklich erlangt habe, als dafür, dass er im ungestörten Besitz der veräusserten Sache bleiben könne”, printed in Fasel, pp. 129–130. |
| 315 | Cf. sect. 223 of the 1869 draft: “Der Verkäufer hat dafür Gewähr zu leisten, dass nicht ein Dritter wegen rechtlicher Mängel, die schon zur Zeit des Verkaufes bestanden haben, das veräusserte Recht dem Käufer entziehen und schmälern könne”, printed in Fasel, p. 543. This fact is overlooked by Giger who argues that Art. 235 Swiss Code of Obligations 1881 (of which sect. 223 of the 1869 draft was a predecessor) is a continuation of sect. 1404 Zürich Civil Code, BK/Giger, Art. 192 OR para. 13. |
| 316 | Meili, p. 82 para. 228 fn. 61. |
| 317 | E. Huber, Vol. III, p. 703 with regard to immovable property. |
| 318 | Carrard, p. 15 (“a conservé avec soin les particularités du droit zurichois”). Supporting the idea that this obligation to transfer the property was part of Zürich legal thought, Bader, SJZ 1923/24, 306. |
| 319 | See the draft of the Swiss Code of Obligations of 1871, Art. 212: “Ein Rechtsgeschäft, das auf die Übertragung von Eigentum an bestimmten beweglichen Sachen gerichtet ist, übertragt das Eigentum sofort, ohne dass die Übergabe der Sache oder die Zahlung des Preises erforderlich ist.” |
| 320 | Regarding this compromise Bucher, Code Civil, pp. 139, 145–146. |
| 321 | Wiegand, Sachenrecht im Obligationenrecht, pp. 107, 119. |
| 322 | Contra, BK/Giger, Art. 192 OR para. 13 arguing that Art. 235 Swiss Code of Obligations 1881 is a continuation of sect. 1404 Zürich Civil Code. |
| 323 | BSK ZGB II/Huwiler, Art. 562 ZGB para. 16. |
| 324 | My translation: A contract of sale is a contract whereby the seller undertakes to deliver the item sold including the full rights and benefits [...]. |
| 325 | “A contract of sale is a contract whereby the seller undertakes to deliver the item sold and transfer ownership of it to the buyer [...].” This is the non-binding English translation of the Code of Obligations provided by the State administration in Switzerland, which is available on the Swiss government’s website. |
| 326 | Botschaft des Bundesrates an die Bundesversammlung zu einem Gesetzesentwurf betreffend die Ergänzung des Entwurfes eines schweizerischen Zivilgesetzbuches durch Anfügung des Obligationenrechtes und der Einführungsbestimmungen. (Vom 3. März 1905.), BBl 1905, Vol. II(1), p. 23. |
| 327 | ZK/Schönle/Higi, Art. 192 OR para. 12. |
| 328 | Bucher, recht 1996, 178, 186. |
| 329 | KuKoOR/Herzog, Art. 20 OR para. 4. The original German Civil Code was structured similarly to Swiss law (sect. 306 German Civil Code old version), but was changed as the solution was considered outdated, Drobnig, 40 American Journal of Comparative Law (1992), 635, 641 (written before German law was amended, but already referencing the idea and reason). |
| 330 | Gauch/Schluep/Schmid, OR AT I, para. 632; KuKoOR/Herzog, Art. 20 OR para. 4. |
| 331 | Gauch/Schluep/Emmenegger, OR AT II, para. 2567; ZK/Schönle/Higi, Art. 192 OR para. 7. |
| 332 | Gauch/Schluep/Emmenegger, OR AT II, paras. 2573 (subsequent subjective impossibility), 2574 (initial subjective impossibility), with further references regarding the disputed details regarding the available remedies; ZK/Schönle/Higi, Art. 192 OR para. 7. |
| 333 | BSK OR I/Meise/Huguenin, Art. 20 OR para. 46. |
| 334 | See above paras. 113 et seq. |
| 335 | Bridge, Sale of Goods, para. 5.45; Franzi, Western Australian Law Review (1980), 208, 209. |
| 336 | See on the doctrine of market overt generally, Davenport/Ross, pp. 337 et seq. |
| 337 | Parke B in Morley v Attenborough (1849) 3 Ex 500, 511; Bridge, Sale of Goods, para. 5.45; Franzi, Western Australian Law Review (1980), 208, 209; Ulph, para. 5-118. |
| 338 | Franzi, Western Australian Law Review (1980), 208, 209. |
| 339 | Powell, pp. 78, 88. This liability was sometimes also granted if the seller merely alleged that the goods belonged to him, Crosse v Gardner (1689) Carth 90, 90 ER 656. |
| 340 | Meadows, 65 Fordham Law Review (1997) 2419, 2422–2423. |
| 341 | (1700) 1 Salk 210. |
| 342 | (1849) 3 Ex 500. |
| 343 | Byles J in Eichholz v Bannister (1864) 17 CB (NS) 708, 724. |
| 344 | Meadows, 65 Fordham L. Rev. (1997) 2419, 2424. |
| 345 | Bridge, Sale of Goods, para. 5.07; Franzi, Western Australian Law Review (1980), 208, 211. |
| 346 | Bridge, Sale of Goods, para. 10.01. |
| 347 | Cf. sect. 11(3) SGA 1979. |
| 348 | Bridge, Sale of Goods, para. 5.04. |
| 349 | Bridge, Sale of Goods, paras. 5.29–5.30. |
| 350 | Goode, Commercial Law, 1st edn, p. 240; Bridge, Sale of Goods, para. 5.30. |
| 351 | Potentially contra, Atkin L. J., who reasoned in Niblett v Confectioners’ Materials Co. [1921] 3 KB 387, 401–402 that “if the seller is able to pass to the purchaser a right to sell notwithstanding his own inability” there would be no breach of sect. 12(1) SGA 1893. |
| 352 | (1849) 3 Ex 500, 510. |
| 353 | Bridge, Sale of Goods, para. 5.08. |
| 354 | [1923] 2 KB 500. |
| 355 | Rowland v Divall [1923] 2 KB 500. |
| 356 | Bridge, Singapore Journal of Legal Studies (2017), 345, 348; Ulph, para. 5-119. |
| 357 | Bridge, Sale of Goods, para. 5.09; Bridge, Singapore Journal of Legal Studies (2017), 345, 349 et seq.; Goode/McKendrick, para. 8.26; Burrows, The Law of Restitution, pp. 324–325; finding arguments for and against the judgment, Ulph, para. 5-119; different, however, Wilmot-Smith, 72 Cambridge Law Journal (2013), 414, 420 who finds the judgment consistent with a possible interpretation of English law. |
| 358 | Bridge, Sale of Goods, para, 5.15. |
| 359 | For example, Canada: Fridman, pp. 97–99. Not so under US law, where the concept of “failure of consideration” is no longer used, Kull, 51 Osgood Hall Law Journal 2014, 783, 784. |
| 360 | For example, Art. 184 Swiss Code of Obligations, see above para. 102. |
| 361 | Franconian law is not to be confused with French law. Rather, it refers to the codified popular and customary rights in the Franconian Empire between the fifth and the ninth century, cf. Schumann, col. 1671–1672. |
| 362 | Rabel, Mangels im Rechte, p. 282. |
| 363 | Rabel, Mangels im Rechte, p. 194. |
| 364 | Rabel, Mangels im Rechte, p. 194 with references to other opinions. |
| 365 | Rabel, Mangels im Rechte, pp. 197, 199–200. |
| 366 | Rabel, Mangels im Rechte, p. 197. |
| 367 | Rabel, Mangels im Rechte, p. 197. |
| 368 | Francke, p. 86. My translation: The sales contract obligates the seller to transfer to the buyer [...] the object of purchase as the buyer’s own and, if it is an object, to hand it over to the buyer. |
| 369 | Cf. Jakobs/Schubert, pp. 2–3; Meili, p. 79 para. 218. |
| 370 | Jakobs/Schubert, p. 3. |
| 371 | Eck, Die Verpflichtung des Verkäufers zur Gewährung des Eigenthums nach Römischen und gemeinem Deutschen Recht, 1874, passim. |
| 372 | Eck, p. 42. |
| 373 | Notably, Ernst, Rechtsmängelhaftung, pp. 8 et seq. has undertaken to disprove the interpretation favored by Eck and Rabel. |
| 374 | HKK/Ernst, §§ 434, 435 para. 30. |
| 375 | HKK/Ernst, §§ 434, 435 para. 30. |
| 376 | Bunde, p. 42. |
| 377 | Cf. for example, Bergmann, 74 RabelsZ (2010), 25, 28. |
| 378 | Dannemann/Schulze/Schaub, § 435 BGB para. 7. In favor of applying sect. 433 German Civil Code, Erman/Grunewald, § 435 BGB para. 3; Staudinger/Matusche-Beckmann, § 435 paras. 17–18; MüKoBGB/Westermann, § 435 BGB para. 1. Contra, and in favor of applying sect. 435 German Civil Code, Canaris JZ 2003, 831, 832; Scheuren-Bandes, ZGS 2005, 295, 296; Jauernig/Berger, § 435 BGB para. 5; Meier, JR 2003, 353, 355. |
| 379 | Rener, p. 55. |
| 380 | Cf. Court of Appeal Düsseldorf, 4 December 2012 – 23 U 47/12, BeckRS 2013, 06665, sub. I.1.a.aa. |
| 381 | HKK/Ernst, §§ 434, 435 para. 32. |
| 382 | See above para. 124. |
Property in Goods and the CISG (2024), S. 39—71
