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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

Reehuis, H., 2018, In : Groninger Opmerkingen en Mededelingen. 35, p. 159-174 16 p.

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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
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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