Transferable property includes: ownership, limited rights and rights of action, unless the law or nature of the right prevents a transfer. Other rights are only transferable if the law so provides. This article discusses the requirements of the transfer of goods.
The requirements for a valid transfer of an asset:
- valid title, where the property is sufficiently determined
- decision-making power
- a delivery
A title is a legal relationship or the obligation underlying the transfer. This refers to the obligatory agreement such as purchase, exchange and donation. Also a unilateral legal act (for example a legacy) and other legal facts such as a legal transfer obligation. A legally valid title means that the transfer must be causal. Invalidity occurs, among other things, in the event that the agreement underlying the title is void or in the event that it was voidable, it was destroyed before delivery. Cancellation has retroactive effect, which means that the transfer was subsequently based on an invalid title and therefore no transfer was made. The transferor (the person who transfers the property) remains the rightful owner despite the retroactive delivery, the transferee never became the rightful owner. Nullity can arise from a legal act that is contrary to the law, public order and good morals. A legal act that is voidable is in principle legally valid unless nullity is invoked. Legal acts resulting from defects of will (deceit, threat, abuse of circumstances), error, incapacity to act, mental disorder and actio Pauliana are voidable.
A legal act can be made dependent on a resolutory condition. If the condition occurs and the legal act is thereby dissolved, the title will lapse without retroactive effect. The alienator therefore becomes the rights holder again.
If one of the parties does not comply with the agreement, it can be terminated. If the agreement is terminated, the party that has performed it is obliged to cancel it. There is only a right of action, the termination of a reciprocal agreement has no retroactive effect.
Right of complaint – to complain
This is the case if a seller has already delivered a non-registered movable item to the buyer, but the buyer has not paid. This makes it easier to take action against non-paying buyers by reclaiming the item with a written statement. The requirements for dissolution must be met. The difference with dissolution is that the right to complain immediately results in a shift in assets. The seller immediately becomes the owner again.
Power of decision
The delivery of a good must be made by a person who is not unauthorized to transfer the good. A person who is not entitled to the property has no legal capacity to dispose of it. The owner of an asset has the power to dispose of it. In the case of goods this is the owner, in the case of claim rights the creditor and in the case of limited rights this is the limited beneficiary. This does not alter the fact that there are no cases in which a non-rights holder can be authorized to make another person a rights holder. This could be in the case of representation or pursuant to law in the case of the pledger or mortgager.
Finally, transfer requires delivery. Delivery can only take place in the manner prescribed by law for the relevant good. Parties are not free to create their own method of delivery. The legally prescribed method of delivery depends on the good to be delivered.
- immovable property and other registered property are delivered by means of a notarial deed, followed by their registration in the public registers for registered property.
- movable property, non-registered property are delivered by transfer of possession.
- rights to bearer or order are delivered by delivery of the paper in which the claim is ’embodied’; a receipt is also required for delivery of an order claim.
- Rights to be exercised against one or more persons, such as a registered claim, are delivered by means of a deed and notification thereof to the debtor of the claim.
- goods for which the law does not prescribe their own form of delivery are delivered by means of a deed.
- limited rights to goods are delivered in the same manner as for the delivery of goods to which the right rests.