Derivative Acquisition of Ownership

Question 1

what are the two outcomes for deciding whose the owner after a contract may be made void

Answer 1

• causal system
• abstract system

Question 2

what is the Causal System

Answer 2

some legally valid cause must exist if a transfer of ownership is to occur

Question 3

how may a person obtain ownership through the causal system

Answer 3

• A might retain ownership due to the invalidity of the contract on which the transaction proceeded
• Invalidity of the contract, invalidates the conveyance of ownership by traditio or delivery
• Bad contract would render good conveynace of ownership possible

Question 4

what is the abstract system

Answer 4

system which says that the validity of the contract is irrelevant to the validity of the conveyance

Question 5

how may a person obtain ownership through the abstract system

Answer 5

• both parties intended ownership of the res to pass from A to B
• This is because the validity of the conveyance is entirely abstracted from the validity of the underlying contract – tends to be concerned with obligation law

Question 6

how was classical Roman law largely seen as

Answer 6

causal

Question 7

what view seemed to prevail by the time of Justinian

Answer 7

The validity of the underlying contractual agreement, is not seen as relevant to the validity of the conveyance, so long as both parties nevertheless intend ownership to be transferred by the delivery of the res

Question 8

give an example of abstract transfer

Answer 8

• A gifts the horse to B, but B insists on taking the horse as a sale
• There is no valid contract
• But there may be a valid conveyance, if A delivers the horse to B with the intention of transferring ownership of the horse to B, and B intends to receive ownership of the horse – ownership will pass

Question 9

what has been seen in regards to a single transaction

Answer 9

• within a single transaction, relating to the sale and transfer of a thing, an invalid contract may be followed by a valid transfer of ownership
• Reverse is true, within a single transaction, a valid contract might be followed by an invalid transfer of ownership – the fact that contract is valid has no bearing on validity of the transfer of ownership within the abstract system