The Transfer of Moveables in Scotland and England
| Published date | 01 May 2008 |
| DOI | 10.3366/E1364980908000309 |
| Pages | 173-199 |
| Author | Lars van Vliet |
| Date | 01 May 2008 |
In analysing the rules for the transfer of property, many continental legal systems make use of terms such as “consensual transfer system”, “traditio(n) system”, “causal” and “abstract” transfer systems.
L P W van Vliet,
The terminology requires explanation.
See further Van Vliet,
Cutting across this distinction between consensual and tradition systems is a second distinction between systems which are “causal” and those which are “abstract”. In an “abstract” system of transfer, the validity of the act of transfer is unaffected by any infirmity in the contract or other legal act on which it proceeded. The conveyance thus operates “abstractly” from the contract. In a “causal” system, however, the failure of the contract results in the failure of the conveyance, for the two are inextricably linked. A system in which property passes under the contract – a consensual system, in other words – is inevitably also causal in nature, for without a valid contract there can be no transfer of title. But a tradition system of transfer can be either causal or abstract.
In order to ascertain whether a particular transfer system is causal or abstract (or something in between) the treatment of defects of will, such as error and fraud, offers good evidence. The core element of an abstract transfer system is that the effectiveness of the conveyance is judged independently from the effectiveness of the underlying transaction which formed its basis, with the result that a transfer can be valid even though the underlying transaction is defective. It is a commonplace of legal systems that a party who acted under a defect of will has an action to annul the transaction. But in an abstract system, at least in its purest form, such an action has no effect on the passing of property, with the result that a transfer by the buyer to a sub-buyer is valid, even if the sub-buyer knew of the defect of will. The abstract system in this form was developed by the German scholar Friedrich Carl von Savigny and his pupils in the nineteenth century. As it is the archetype of an abstract system, it is used in comparative law as the standard example of the abstract model. As we will see later, however, this extreme form of abstraction has been abandoned in Germany and seems never to have been adopted in Scotland.
This section asks whether the transfer system for the sale of goods in England is a consensual or
The Sale of Goods Act 1893, so its long title says, was intended to codify the common law relating to the sale of goods, by which is meant the common law of England. Originally the legislation was not intended to apply to Scotland at all, and it was only during the bill's passage through Parliament that the necessary amendment was made for Scotland to be included.
J P Benjamin,
When we read that the Sale of Goods Act 1893 purported to codify English common law, we should realise that that law had developed special rules on the passing of property which did not apply outside the area of sale. Originally, a requirement of delivery applied to all transfers of moveables, corresponding to the requirement of “livery of seisin”
Like the verb “deliver”, the noun “livery” derives from the French
F Pollock and F W Maitland,
Where a specific object was sold and nothing had to be done to bring it into a deliverable state, property passed to the buyer immediately, even if delivery and payment had not yet taken place. The origins of this rule can be traced back to the sixteenth century.
J H Baker,
(1827) 6 B & C 360.
This rule was carried forward to the Sale of Goods Act. Section 17(1) – the principal rule on the passing of property – provides that:
Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.
However, in order to categorise the Act's transfer system from a comparative law perspective, it is necessary to focus on the default rule rather than the rule which the Act happens to set up as the primary rule. The default rule – the rule which applies in the absence of the parties' express or implicit intention – is to be found in section 18. Rule 1 of section 18 provides that:Where there is an unconditional contract for the sale of specific goods in a deliverable state the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, be postponed.
Where there is a contract for the sale of unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods then passes to the buyer; and the assent may be express or implied, and may be given either before or after the appropriation is made.
The question of whether the transfer system in the Sale of Goods Act is causal, abstract or something different is not debated in English case law and hardly...
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