N. 6
– 2007 – Contributi
Tradition and
Passing of Property (with Regard to
Alexander-Herzen-University
The legal nature of the tradition (that is of the
transfer of a thing in discharge of a contractual obligation) has become
recently an object of energetic discussion in the Russian civil law literature.
There exist radically different views on the subject. There are few once who
regard the tradition as a bilateral transaction abstracted from the underlying
contractual obligation of sale[1].
So they are interpreting the rules of Russian law in the spirit of German civil
law doctrine. Moreover, these authors consider it necessary to separate the
tradition into two acts — an agreement of transfer of ownership, which is
a bilateral transaction with the real effect, and the act of the things
delivery (Realakt), which is not a
transaction per se.
The second view consists in recognition of tradition
as a bilateral transaction, but without its abstraction from the underlying
contractual obligation[2].
That means the tradition to be a transaction dependent on its causa contrahendi. At last there are
many jurists, who see in the tradition a combination of unilateral transactions
of the parties discharging their contractual obligations of sale and purchase[3].
It is necessary to say, that general point of this position focuses on the
renunciation of the requirement about concurrent participation of both parts in
the tradition that is the renunciation of the bilateral transaction’s
nature of the tradition.
It is worth noting the impossibility of
acknowledgement of the tradition a bilateral transaction on the base of literal
reading of the text of law only.
The first point of the article 223 of Russian Civil
Code proves only that in Russian civil law ownership passes to acquirer by
transfer of a chose to him, and that it is not a contract of sale per se that transfers ownership.
Meanwhile this model includes many variations, which are common only in
requirement of delivering of possession in discharge of contractual obligation
of alienation of thing for passing of its ownership[4].
The agreement of the transfer of ownership can be
included in the contractual obligation of alienation (for example, in the
contract of sale). It is so in the Austrian (§ 380 and 425 Civ. Code)[5]
and Spanish (Art. 609 Cód. civ.)[6]
law. However it can be also a bilateral transaction, autonomous of the
contractual obligation, but dependent of the last one – like it is in
Dutch (Art. 3:84 Abs. 1 Cod Civ.)[7]
and Swiss[8]
law. In both these cases we deal with the model of causal tradition. But the
agreement of the transfer of ownership can constitute a separate bilateral
transaction which has to be evaluated “abstractly” from the
underlying contract of obligation. In the last case they say about the model of
the abstract tradition. This variation applies to
Therefore we can conclude, that in each legal system
based on the model of the tradition exists an agreement of the transfer of
ownership, but this agreement can be either implied in the contractual
obligation or can take place as a separate transaction with the real affect at
the moment of discharge of the obligation. But for all that the construction of
the abstract tradition can exist only in case of separation of the agreement of
the transfer of ownership from the obligatory contract. On the contrary, the
idea of the causal tradition can have its place as in such separation as in
case of unity of the obligation and the transfer of ownership agreement in one
inseparable act. That's why perfect understanding of the legal nature of the
tradition in Russian civil law requires to explore, first of all, if it is
causal or abstract, because its recognition as an abstract act will demonstrate
ipso facto that it is a bilateral
transaction. If it is a causal act it could be unilateral or bilateral
transaction.
The question of the causal or abstract nature of the
tradition is very intricate with reference to Roman law, because one can find
many contradictory regulations in its texts. So the causal tradition is
discussed in the next legal sources: Gai. 2.20[13],
Ulp. 19.7[14],
D. 41.1.31 pr.[15],
Inst. Iust. 2.1.41[16].
As an argument in favour of the abstract tradition can be used D. 41.1.36[17],
which unites the abstract characteristic of delivery with the irrelevance of
the error in causa traditionis, and D. 12.1.18 pr.[18],
which doesn't adopt such
irrelevance. This non-coordination in the legal texts gave rise already from
the beginning of the early Modern Times to the theoretical discussion about the
iusta
causa traditionis.
The XVI-th century doctrine of titulus et
modus acquirendi produced by Johann
Apel in his Methodica dialectices ratio ad jurisprudentiam
adcommodata (1535)[19] and accepted at the second half of the next
century as communis opinio doctorum
in Germany understood the requirement of a iusta causa transferendi dominii as a necessity of a valid obligation, due
to which ownership must be transferred to the purchaser. This theory based on
the rule of D. 41.1.31 pr. contradicted to the fragment D. 41.1.36, in which
ownership passed to the purchaser in any case, when the alienator and the
purchaser come to the agreement about the ownerships transfer. The way out from
this collision was at first the permission of the acquirement of property,
based on the causa putativa[20]. As a tradition based on the iniusta
causa was considered those cases, which were
enumerated as such in the statute law (for example, it was recognized as such
case a delivery based on the illicit donation between husband and wife[21]).
Another solution was produced by F.C. Savigny[22].
He presumed that there were cases of the valid tradition without an obligatio
civilis before it. To his mind these are cases of
dispensation of alms and of transfer of a loan without a civil contract before
the transfer. Therefore Savigny believed that the iusta causa transferendi was in no way an obligatio
civilis. He considered the iusta causa
transferendi as an agreement
between the alienator and the purchaser about the transfer of ownership. One
can conclude about the real existence of this agreement from the externals of
the delivery, but these externals are not a legal causa of the tradition[23].
Therefore the tradition of a thing is an abstract
transaction in Savigny's doctrine. Its validity or non-validity don't depend
from the validity of the obligation. This conclusion determines an
actualization of the question about the error
in causa traditionis, which is based on the contradiction of the rules of
D. 12.1.18 and D. 41.1.36.
This problem was in the centre of attention of German
pandectistics, which tried to adjust the contradictory views of Roman lawyers[24].
In the final analysis the pandectistics adopted opinion of Julianus. He thought
that the tradition transfers ownership in any case, when the parts come to the
agreement about passing of ownership, even if there was no obligation of
alienation because of the error in causa
traditionis. The dogma of the
abstract tradition, which wasn't an element of the Classical Roman Law, came
into the German legal system as a corner stone of the property law and entered
into the German Civil Code as its § 929.
The idea of the abstract tradition was adopted almost
unanimously in Russian pre-revolutionary civil law doctrine[25],
inspired by the dogmatic influence of the German Pandectism. Works of this
period are very popular among modern followers of the idea of the abstract
tradition, because they try to demonstrate a historical continuity of their
position.
The causal tradition's followers try to prove their
view by references to the text of the second point of article 218 and the first
point of article 223 of the Russian Civil Code, which state the acquisition of
property based on the contract or by virtue of a contract[26].
The term "contract" here is
a synonym of the word "obligation".
The sticklers of the conception of the abstract tradition can't make a disproof
for this argumentation. They insist that these articles don't reflect the
causal nature of the tradition, but only mean that the delivery is usually based not on the court decision
or unilateral transaction, but on the bilateral transaction, that is on the
contract[27].
The reasoning is declarative and unscientific.
The adopters of the abstract tradition say, that their
conception is confirmed by the rules of unjust enrichment[28].
Namely they say that the possibility of restitution of an
individually–defined thing as unjust enrichment is based on the idea of
the abstract tradition. It is worth noting that such a possibility is also provided
in those legal systems which include causal tradition and therefore the unjust
enrichment action intended for restitution of an individually–defined
thing has another than abstract tradition premise. But in any case it is very
important to make an analysis of the argumentation proposed in favor of the
abstract tradition in Russian civil law.
Its partisans try to construe the rules of the article
1106 of Civil Code as a basis for the abstract tradition. Meanwhile according to
this article a person who has transferred a right belonging to himself to
another person by way of assignment of a claim or in another manner on the
basis of a non-existent or invalid obligation can bring an action based on the
unjust enrichment. Therefore each right discussing in this article may be
transferred by each means named here, including assignment. Consequently there
is no possibility to apply this article to the right of ownership as long as
this right can't be transferred by means of the assignment. Certainly Russian
Civil Code allows the transfer of the property right by means of the assignment
of the rei vindicatio claim, yet this
is without any doubts an equivalent for the delivery, but not a special case of
the assignment of rights, because the plaintiff must be an owner or a rightful
possessor of the thing to bring this action.
The attempts to prove an existence of the abstract
tradition's principle in Russian civil law demonstrate an explicit influence of
the German pandectic doctrine. Such
aspirations for Germanization of Russian civil law are evidences of the
uncritical attitude to the pandectistics legacy without capacity for
distinguish the national German institutions and general positions of the
European civil law doctrine.
Of course, the idea of the abstract tradition has been
adopted in some modern civil law systems, for example in Estonian law[29].
But it is an apparent consequence of political and historical motives, because
the abstract tradition was peculiar to the law system of the Baltic provinces
of Russian Empire[30].
It is worth noting another tendency. For example the
Civil Code of Georgia, which belongs to the Germanic group of the continental
law family, has adopted the idea of the causal tradition[31].
Similar tendency is typical for the modern civil law
doctrine in
The tendency for renunciation of the abstract
tradition is an explicit line of development of European civil law. So the
first point of the article 2:101 of the Civil Code's for EU draft says, that the transfer of ownership in a movable
requires:
(a) the transferor’s right or authority to
transfer ownership in the movable and
(b) delivery or an equivalent to delivery or an
agreement as to the time ownership is to
pass [or registration] [based on]
(c) an obligation to transfer ownership[33].
This line of development of the European law should
also be taken into consideration in the study of the legal nature of the
tradition in the civil law of
So we can conclude that Russian civil law has adopted
a causal tradition's model and there is no need to negate it.
But what is the causal tradition in the Russian civil
law in itself?
The opinion on the legal nature of the tradition which
prevailed in the jurisprudence until the beginning of the XIX century was
proceed from assumptions that the delivery of the thing presents the discharge
of contract of alienation. This idea was based on the conception titulus et modus acquirendi, which
placed high emphasis on the obligation's point in the relation between the
persons[35].
Therefore the Austrian Civil Code, which was produced at the time of the
dogmatic domination of this conception, doesn't know the tradition as a
contract[36].
Another decision was produced by F.C. Savigny, which
presumed that tradition is bilateral treaty about the transfer of ownership.
Savigny especially noted to prove the idea, that the tradition as a bilateral
transaction can be a conditional contract, if ownership passes to the purchaser
after full payment for merchandise[37].
This point of view can be confirmed by many texts of
Justinian's Digests (D. 18.1.53[38],
D. 14.4.5.18[39],
D. 19.1.11.2[40],
D. 40.12.38.2[41],
D. 49.14.5.1[42],
D. 18.1.19[43])
and by the text of Inst. Iust. 2.1.41[44]. The question of the conditional tradition
was expanded in the work of Robert Feenstra[45]
and in the article of Tony Honoré[46]
and now we shall not dwell on this problem concerning Roman law.
It is only important to say here, that the condition
about the full payment for merchandise applies to the tradition, which is in
that way a conditional bilateral transaction, but doesn't apply to the sale
contract, which is an unconditional obligation as it takes its legal effect
since signing[47].
Savigny's idea about the contractual nature of the
tradition was accepted by most of pandectists[48]
and by majority of Russian civilians[49],
who were under dogmatic influence of German jurisprudence. This opinion was
adopted in the German Civil Code[50]. However some of legal scholars didn't
recognize the tradition as a bilateral treaty – for example Siegmund
Schlossmann[51],
who tried to see in tradition a unilateral transaction, and Iosif Pokrovski[52],
who called the tradition a special real act. But according to the prevailing
ideas, based on the text D. 44.7.55[53],
tradition was recognized as an agreement concerning transfer of ownership, that
is as a contract.
A disproof of this opinion can be based on the
assumption that according to Roman law and Roman sense of justice doesn't exist
a possibility to transfer a property right, but this right must end on the side
of seller and spring up on the side of purchaser. This opinion is protected by
Ralf Michaels[54]
without any arguments in its favour. Similar conception but concerning legal
characteristic of the tradition in the Russian civil law is supported by some
authors[55]
who are under the influence of the ideas produced by a famous soviet civilian
Veniamin Gribanov[56].
This opinion doesn't correspond to the systemative
interpretation of the Russian Civil Code[57],
although it is based on the texts of its articles 223 and 235. According to
another rules of the Civil Code it is clear that the Russian Civil Law system
has adopted the classical model of the transfer of ownership without this right
ending on the side of seller and springing up on the side of purchaser.
A hard ground for the conclusion about the tradition
as a bilateral transaction in Russian civil law is the rule of the article 491,
according to which the transfer of the property right can be made under
condition about the full payment for merchandise by purchaser[58].
Therefore we can conclude that tradition in the modern
Russian civil law is a bilateral transaction dependent from the obligation
underlying it. In other words it is a causal contract dealing with the transfer
of the real right.