On Jhering's passive Wirkungen and the proprietary effect of the fulfilment of the condition in case of a transfer subject to a suspensive condition

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    Abstract

    The proprietary effect of the fulfilment of the suspensive condition in a conditional transfer is traditionally
    explained by the retroactive effect of the fulfilment of the condition. In the nineteenth century, various
    writers wondered whether this explanation was satisfactory. Jhering proposes a different theory for the
    explanation of the proprietary effect of the fulfilment of the condition. In his article ‘Passive Wirkungen
    der Rechte’, he creates a theory based on Roman law in which the proprietary effect is explained by the
    passive Wirkungen of the ‘legal bond’ of the asset. In his theory, the fulfilment of the suspensive condition
    has a proprietary effect without using retroactive effect of the fulfilment of the condition. Despite the fact
    that the transfer of rights is postponed until the condition is realised, the asset is already ‘legally bound’
    because of the conditional transfer. This ensures that the ownership is transferred if the suspensive
    condition is fulfilled.
    Jhering’s theory is insightful for Dutch law because the Dutch Civil Code excludes retroactive
    effect of the fulfilment of the condition. The doctrine of the ‘legal bond’ of the asset also corresponds
    with the intention of the transfer in the case of a suspensive condition. It fits within the Dutch system of
    property law and explains in a simple manner the proprietary effect of the fulfilment of the condition.
    Original languageEnglish
    Pages (from-to)159-174
    Number of pages16
    JournalGroninger Opmerkingen en Mededelingen
    Volume35
    DOIs
    Publication statusPublished - 2018

    Keywords

    • Jhering
    • Passive wirkungen
    • property
    • suspensive condition
    • transfer subject to a suspensive condition
    • Roman law
    • Dutch law
    • German law
    • legal bond

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