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  •  Title: Mortgages on immovables in Dutch law in comparison to the German mortgage and land charge trans
Author:  Vliet, L.P.W. van
Source:  Universiteit Maastricht
Published in:  Maastricht European Private Law Institute (M-EPLI) Working Paper 21/2011
Year:  2011
Description:  The Dutch mortgage (hypotheek) is a limited real right which gives the creditor a very high rank in the debtor's insolvency and which gives its holder a quick and very practical means of organising a forced sale of the burdened property. The mortgage is in principle accessory to, that is, linked to the secured claim. To give two examples, when the secured claim lapses as a result of payment the mortgage lapses also and when the secured claim is assigned, the mortgage automatically passes to the assignee. This is called the principle of accessoriness. This principle primarily aims at protecting the mortgagor. In order to enhance the mortgagor's protection the assignee of the secured claim cannot rely on the public land register for the existence or amount of the secured claim. If the secured claim had already been repaid before the assignment, but the claim and mortgage are still registered in the land register, the assignee receives neither a claim nor a mortgage. This Dutch system is contrasted with German law which takes a different approach for the Verkehrshypothek. Here German law favours the bona fide assignee over the debtor by enabling the assignee to rely on the public land register. In the past this applied equally to the more common German Grundschuld (land charge), which was always described as non-accessory. As the non-accessory character has recently given rise to misuse by assignees, the German legislator has changed the law (in the so-called Risikobegrenzungsgesetz) to enable the chargor to set up against the assignee any defences which he had against the assignor, for example the defence that the debt had already been redeemed (partly). This change in the rules on the Grundschuld entered into force on the 19th August 2008. The effect is that at the moment of enforcement the Grundschuld is accessory, like the Dutch mortgage. The changes did not affect the German Hypothek so that the Verkehrshypothek is now much less accessory than the German Grundschuld, notably at the time of enforcement. This is a very remarkable change because the German Grundschuld has always been the archetype of a non-accessory mortgage. It no longer is.
  •  Title: European and national property law: osmosis or growing antagonism? trans
Author:  Erp, Sjef van
Source:  Universiteit Maastricht
Published in:  Walter van Gerven Lectures ; 6
  •  Title: Free Movement of Goods and Property Law trans
Author:  Bram Akkermans, Eveline Ramaekers
Source:  Universiteit Maastricht
Published in:  Maastricht European Private Law Institute (M-EPLI) Working Paper 26/2011
Year:  2011
Abstract:  In the EU there is an internal market in which there is free movement of goods. The effects of internal market law are very wide because of the focus on economic integration. Every aspect of national law is potentially subject to the influence of EU law. This includes the application of internal market law to areas of property law that is usually considered a purely national competence. In the area of movable property law – surprisingly – there have been no actual cases. When a property right is created in one Member State and the object on which it was created is moved to another Member State, the rules of private international law in combination with the application of national property law, which adheres to a closed system of property rights, will result in a loss of right. This is a substantial hindrance to intra-Union trade. Recent developments in the case law on the free movement of goods merit renewed attention to these types of fact patterns. With a market access test, our argument of application of EU law becomes stronger. The ECJ might pass judgment on private international law and national property law advancing the creation of a European property law.
  •  Title: Acquisition and Loss of Ownership of Goods – Book VIII of the Draft Common Frame of Reference trans
Author:  Lars Van Vliet
Source:  Universiteit Maastricht
Published in:  Maastricht European Private Law Institute (M-EPLI) Working Paper 25/2011
Year:  2011
Abstract:  This article gives an overview of some of the key subjects of Book VIII DCFR: The Draft Common Frame of Reference. It focuses on the transfer of movables, the transfer by a non-owner, i.e. the rules on bona fide acquisition, and the conflict between a seller who delivered with a retention of ownership clause and the buyer who produces new goods from the goods delivered to him. This last subject is mainly treated in Book IX DCFR. The article explains the rules of the DCFR, criticizes the rules and compares them to Dutch, German and French law, and the UK Sale of Goods Act.
  •  Title: Transfer of Movables as a Legal Act trans
Author:  Lars Van Vliet
Source:  Universiteit Maastricht
Published in:  Maastricht European Private Law Institute (M-EPLI) Working Paper 24/2011
Year:  2011
Abstract:  The official comments on Book VIII of the Draft Common Frame of Reference (DCFR), having stressed that the concept of “real agreement” has not been adopted, seek to demonstrate that this concept is superfluous. A “real agreement” is one in which the transferor declares that he is transferring ownership to the transferee and in which the transferee declares that he is accepting ownership. Normally this is done implicitly. “Real agreement” is thus the expression of the parties’ will that ownership should pass; it is what makes transfer a legal or juridical act. The real agreement, it is true, will normally pass ownership only if additional requirements have been met, such as a valid legal ground, delivery or a deed, but the declaration of will between the parties is always the core element of any voluntary transfer of ownership. From the rejection of real agreement, therefore, it seems to follow that the DCFR does not regard transfer as a legal act at all but merely as a consequence of a certain factual act, namely delivery or an equivalent of delivery (or an agreement as to the time when ownership should pass) coupled with a valid legal ground. It should be stressed, however, that the comments are silent on this point, neither asserting nor denying that the transfer is a legal act. The drafters, it seems, have not realised this consequence of rejecting the real agreement. The article discusses the arguments put forward by the drafters of the DCFR to reject the concept of “real agreement” and the soundness of these arguments.
  •  Title: A Factual Assessment of Book 8 of the Draft Common Frame of Reference (Acquisition and Loss of Ownership of Goods) trans
Author:  Lars Van Vliet
Source:  Universiteit Maastricht
Published in:  Maastricht European Private Law Institute (M-EPLI) Working Paper 23/2011
Year:  2011
Abstract:  Most of the Books of the Draft Common Frame of Reference (DCFR) have been subject to a so-called factual, case-based, assessment. This paper contains the case-based assessment of Book VIII (titled 'Acquisition and loss of ownership of goods'), but also covers a small part of Book IX (which treats security interests on movables). Purpose of the assessment is to take three hypothetical cases and see how the cases should be solved according to the rules of the DCFR and compare this outcome to the outcome in various national systems. The first case involves the sale of part of a bulk in which the buyer prepays half of the purchase price and in which the seller is declared insolvent before delivery. The second case is about the sale and transfer through constitutum possessorium (attornment by the transferor) by a non-owner to bona fide purchaser. In the third case goods have been sold and transferred under a retention of title clause and the buyer has used the goods to produce new products (specification) before having paid for the goods. All three cases are solved according to Dutch, German, English and French law.