учебный год 2023 / A Comparison of German Moveable Property Law and English Personal Property Law

97 Baur/Stürner, § 7 n 13.

98 See below, F.1.b).

99 Baur/Stürner, § 7 n 51.

100 See Westermann/Gursky, § 13 II, and below under E.1.

101 Traditio brevi manu: "Der Fremdbesitzer wird zum Eigenbesitzer".

102 Eg the owner sells and transfers ownership in the thing but keeps it, rather than delivering it to the new owner. See explanation of the Roman law constitutum possessorium in Nicholas, B Roman Law supra note 75 above at 119.

103 Constitutum possessorium: "Der Eigenbesitzer wird zum Fremdbesitzer".

104 Baur/Stürner, § 51 nn 20-21.

105 Schwab/Prütting, § 7 nn 58-59.

106 Bell, 62.

107 This is the scenario of the constitutum possessorium in German law, § 930 BGB.

108 Bell, 63. This is the scenario of the traditio brevi manu in German law, § 929, sentence 2 BGB.

109 Bell, 63. This would be a situation of "Besitzanweisung" which German law does not regulate separately. See instead § 931 BGB.

110 In German law this would be cases of "Besitzerwerb durch Einigung", § 854 (2), see Schwab/Prütting, § 7 n 56.

111 Bell, 58, 64.

112 Goode, 45, Bell, 36, 51.

113 Bell, 51 with further references. The details surrounding abandonment by the possessor or owner are complicated and controversial, see Hudson, 595.

114 Or possession is presumed to continue if there is no abandonment, but that problem does not seem to arise as a separate issue for an English lawyer because in the case of a lost res he will concentrate only on the ownership aspect which encompasses possession. See e.g. Hudson, A 'Abandonment' in Palmer, N and McKendrick, E (eds) (1998) Interests in Goods (2nd ed) LLP Reference Publishing 595-619 who speaks of "owners and possessors of property", at 595, 596, "possessory or proprietary rights", at 614.

115 Hudson, 'Abandonment' supra note 114 at 603.

116 Bridge, 46.

117 Below, D.2.d).

118 Worthington, S Personal Property Law supra note 3 at 76, Goode, 31.

119 This distinction is not observed strictly in reality. In German law, § 1007 BGB, the action of the prior possessor for delivery of the moveable res against the present possessor in bad faith (an extended form of the Roman law actio publiciana), is based on possession, but allows the enforcement of a right to possession in a permanent way, close to ownership, and is therefore more "petitory" rather than possessory in nature, see Schwab/Prütting, § 50 n 587. See also below under D.2.c).

120 Baur/Stürner, § 9 nn 10-11.

121 Baur/Stürner, § 9 nn 10-11.

122 Schwab/Prütting, § 14, n 119.

123 See for more details Schwab/Prütting, § 14 nn 120, 121, 123-124; Baur/Stürner, § 9 nn 16-22.

124 Baur/Stürner, § 9 nn 23-25. The same applies in relation to a landlord-tenant situation in immoveable property law.

125 For the present paragraph, see Rahmatian, A 'The Property Theory of Lord Kames' supra note 21 at 181-182.

126 Honoré, A M 'Ownership' supra note 43 at 108-109.

127 Gray, K (1991) 'Property in Thin Air' (50) Cambridge Law Journal 252.

128 This is the well-known definition by Honoré commonly used in the Common Law world, see Honoré, A M 'Ownership' supra note 43 at 108.

129 See Honoré, A M 'Ownership' supra note 43 at 126.

130 More details in Westermann/Gursky, § 28 I 2. On the guarantee of ownership in German constitutional law, see Wolf, M (2004) Sachenrecht (20th ed) C H Beck § 3 nn 33-42.

131 On the action of delivery, see below D.2.d).

132 Baur/Stürner, § 11 n 1, § 24 n 5, § 50 nn 1-2.

133 Baur/Stürner, § 24 n 4.

134 See above under C.

135 See above under B.1., C. and below under F.1.a) (pledge and floating charge).

136 Bell, 153.

137 E.g. Bridge, 28.

138 See above under D.1.c) and below under D.2.d).

139 Compare Honoré, A M 'Ownership' supra note 43 at 142.

140 Schwab/Prütting, § 51 nn 591 et seq.; Baur/Stürner, § 3 n 27, § 50 nn 7-12. Joint ownership is only available within the institutions provided by law, such as the BGB-Gesellschaft, the community of heirs (§§ 2032 BGB et seq.) the general partnership (§§ 105 et seq. HGB or Commercial Code) and the limited partnership (§§ 161 et seq. HGB).

141 See e.g. Gray, K and Gray, S F (2005) Elements of Land Law (4th ed) Oxford University Press 1021.

142 See e.g. Bridge, 31, Worthington, Personal Property Law supra note 3 at 49, Bell, 74.

143 Lawson and Rudden, 92-93.

144 Fowkes v. Pascoe (1875) LR 10 Ch. App. 343.

145 This presumption may be defeated by the presumption of advancement, see e.g. Martin J E (Hanbury and Martin) Modern Equity (17th ed) Sweet and Maxwell, 269, Hayton, D and Mitchell, Ch (Hayton and Marshall) Commentary and Cases on the Law of Trusts and Equitable Remedies (12th ed) Sweet and Maxwell 322.

146 Wray v Steele (1814) 2 V & B 388.

147 Midland Bank v Cooke [1995] 4 All ER 562, Oxley v. Hiscock [2004] 3 WLR 715.

148 For more discussion on purchase money resulting trusts, see e.g. Martin J E (Hanbury and Martin) Modern Equity supra note 145 at 267-268.

149 In the case of land (real property), co-owners (co-trustees) must hold the legal title to the property jointly, see Law of Property Act 1925, ss. 35 (1), 36 (2).

150 In the context of land law, and especially the "family home" cases, where these issues are of most practical importance, these rules have been altered considerably, see Hanbury and Martin (Jill Martin), 285.

151 Schwab/Prütting, § 6 n 49.

152 Baur/Stürner, § 3 n 24.

153 Nicholas, B Roman Law supra note 75 at 114-115.

154 Baur/Stürner, § 10 n 6; Westermann/Gursky, § 34 I.

155 This claim is rooted in the actio publiciana of Roman law, see Nicholas, B Roman Law supra note 75 at 127.

156 The pre-requisites of a claim according to § 1007 are more complicated in the details, see Baur/Stürner, § 9 nn 27, 29; Schwab/Prütting, § 50 n 590, Westermann/Gursky, § 35.

157 Schwab/Prütting, § 50 n 587.

158 Bell, 76. There is also the presumption that the owner will be in possession where it is not clear who is in possession of the thing, Bell, 51.

159 Goode, 62.

160 Palmer, N 'Possessory Title' supra note 68 at 66; Crossley Vaines, J Personal Property supra note 29 at 45.

161 The Winkfield [1902] P 42.

162 The Jag Shakti [1986] AC 337.

163 Crossley Vaines, J Personal Property supra note 29 at 39.

164 Schwab/Prütting, § 47 nn 512, 522.

165 Goode, 62.

166 Bridge, 51, 62.

167 Worthington, S Personal Property Law supra note 3 at 572.

168 On the property torts, see e.g. Bridge, 47-79; Bell, 76-85; Tettenborn, A 'Wrongful Interference with Goods' in Alexander, D et al (eds) (2006) Clerk & Lindsell on Torts (19th ed) Sweet and Maxwell paras 17-01 to 17-142 at 1003-1079.

169 Worthington, S Personal Property Law supra note 3 at 572.

170 Bridge, 51.

171 Bridge, 48-49.

172 , A 'Conversion, Tort and Restitution' in Palmer, N and McKendrick, E (eds) Interests in Goods (2nd ed) LLP Reference Publishing 825.

173 Lancashire and Yorkshire Railway Co. v. MacNicoll [1918] 88 LJKB 601, Oaxley v. Lyster [1931] 1 KB 148.

174 Bridge, 63.

175 Jeffries v. Great Western Railway Co. (1856) 5 E & B 802.

176 Torts (Interference with Goods) Act 1977, s. 3 (c).

177 Ibid., s. 3 (2) (b).

178 Ibid., s. 3 (2) (a) and s. 3 (3) (b).

179 Schwab/Prütting, § 47 nn 513-515; Baur/Stürner, § 11 nn 1, 4; Westermann/Gursky, § 30.

180 This area is quite complicated and cannot be discussed here in detail, see Schwab/Prütting, § 48.

181 Baur/Stürner, § 11 n 6.

182 The relevant provisions in this area are significantly more detailed, see Schwab/Prütting, § 48 nn 532-534, 551-555.

183 Baur/Stürner, § 11 nn 9-10.

184 Schwab/Prütting, § 47 n 523.

185 Baur/Stürner, § 12 n 1.

186 Baur/Stürner, § 12 nn 2, 5, 12-14.

187 More details in Baur/Stürner, especially § 12 nn 20-27; Wolf, M Sachenrecht supra note 130 at § 14.

188 Baur/Stürner, § 5 n 40-41.

189 See on the Roman law institutions of mutuum and commodatum, Nicholas, B Roman Law supra note 75 at 167-168.

190 § 380 Austrian ABGB: no ownership can be acquired without a cause (Titel, titulus) and a legally recognised mode of transfer (rechtliche Erwerbungsart, modus).

191 Compare Swiss Civil Code (Zivilgesetzbuch) §§ 974-975 ZGB (regarding land), and court decision BGE 55 II 306 (regarding moveable property). The matter is slightly more complex, in that the parties can decide not to refer to the cause of the contract (art 17 Obligationenrecht), or exclude certain defences, and thus give their transaction a higher abstract quality, see Koller, A in Guhl (Koller et al) (eds) (2000) Das schweizerische Obligationenrecht (9th ed) Schulthess 100-101.

192 Baur/Stürner, § 5 n 41-42.

193 Baur/Stürner, § 51 n 1; Westermann/Westermann, § 37 n 3, §§ 38, 40.

194 Savigny, F C v (1853) Das Obligationenrecht als Theil des heutigen Römischen Rechts, vol II Veit und Comp. 254-261, especially at 257 and note (m). Note (m) is almost identical with the wording in § 929 BGB today.

195 Wieacker, F (1995) A history of private law in Europe (tr Tony Weir) Oxford University Press 341-362; van Vliet, L P W (2000) Transfer of Movables in German, French, English and Dutch law Ars Aequi Libri 169, 186.

196 See on this process Rahmatian, A 'Friedrich Carl v. Savigny's "Beruf" and "Volksgeistlehre"' supra note 8 at 1, 15-17, with further references.

197 Ulpian D 12,1,18 pr.

198 Julian D 41,1,36.

199 The wording chosen here ("acquire") is deliberately vague, because the acquisition can be an original one in good faith or a derivative one, depending on the legal remedy in question. The matter of "Fehleridentität" is far more complicated than this outline suggests, see Baur/Stürner, § 5 nn 7-10, 51-53, Westermann/Westermann, § 4 IV. 1. There are different legal consequences, depending on whether the vitiation of the contract was due to mistake, fraud, usury etc.

200 In principle, the parties can withdraw from that agreement to transfer ownership (prevalent, but disputed, view), although that may attract liability for breach of the contract (e.g. sale) which obliges them to perform the real contract, Baur/Stürner, § 5 n 36.

201 Baur/Stürner, § 5 nn 2, 5. This agreement can be conditional, as is the case in retention or reservation of ownership/title stipulations, see § 449 BGB, Baur/Stürner, § 51 n 9.

202 See D.1.b).

203 In such a case the old owner is either indirect possessor (suo nomine) or not possessor at all (e.g. he had lost possession - obviously not ownership - to a thief), see Baur/Stürner, § 51 n 35.

204 Baur/Stürner, § 51 nn 35-36.

205 See above under D.1.a).

206 Baur/Stürner, § 51 n 18.

207 It is irrelevant whether the acquisition of ownership itself was a derivative acquisition or a bona fide acquisition (see below, E.2.a)), of which this rule is a sub-category in relation to the restricted real rights. There are various additional provisions in the context of this rule, which are not discussed here.

208 See Bell, 236, Bridge, 81, but characteristically without much emphasis, unlike Scottish textbooks, where the Civilan origin of Scottish property law is emphasised, see Reid, para. 606; Carey Miller and Irvine Corporeal Moveables in Scots Law supra note 78 at 131-134; Guthrie, T G (2005) Scottish Property Law (2nd ed) Tottel 47-50. As regards security rights, see Goode, 625.

209 Goode, 25-26.

210 In relation to unascertained goods, Sale of Goods Act, s. 16 applies, according to which title in unascertained goods cannot pass until the have become ascertained. See Bridge, 86.

211 See Cochrane v. Moore (1890) 25 QBD 57.

212 See Bridge, 80-81.

213 In the terminology of the Sale of Goods Act, s. 17, "property".

214 Art. 1138 Code Civil.

215 § 380 ABGB.

216 § 929 BGB.

217 Bridge, 81.

218 Singh v. Ali [1960] AC 167, Goode, 133, Bridge, 81.

219 Schwab/Prütting, § 4 n 27, Baur/Stürner, § 5 nn 7-10.

220 Schwab/Prütting, § 35 n 423; Bridge, 116; Crossley Vaines, J Personal Property supra note 29 at 139.

221 Goode, 416; Bell, 459; Ulph, J 'Good Faith and Due Diligence' in Palmer, N and McKendrick, E (eds) (1998) Interests in Goods (2nd ed) LLP Reference Publishing 403, 404.

222 Ulpian D 50,17,54.

223 "Wo Du Deinen Glauben gelassen hast, musst Du ihn suchen", also expressed as "Hand wahre Hand", see Conrad, H (1962) Deutsche Rechtsgeschichte I Müller 432.

224 Baur/Stürner, § 52 nn 8-10; Westermann/Gursky, § 45 I, III 1 d), V.

225 Indirect possession also confers the appearance or presumption of ownership, § 932 in connection with § 929 BGB, §

934 BGB.

226 Baur/Stürner, § 52 n 17.

227 That is, original acquisition in good faith under § 932 BGB. Derivative acquisition under § 929 BGB is of course possible through constitutum possessorium.

228 The theoretical conflict between § 933 BGB (no acquisition in good faith through constitutum possessorium), and § 934 BGB (acquisition in good faith by way of assignment of the real action), is not easy to justify, see e.g. Westermann/Gursky, § 48 II 2.

229 In that case, indirect possession of the transferor is transferred to the transferee, § 870 BGB. This rule applies both to derivative acquisition of ownership and acquisition in good faith.

230 Acquisition of indirect possession is sufficient, BGH Neue Juristische Wochenschrift 1959, 1536, Baur/Stürner, § 52 n 22.

231 Baur/Stürner, § 52 nn 20-22.

232 Gross negligence does not prevent acquisition in good faith of immoveable property (§ 892 BGB). The reason for this restriction to positive knowledge is that everybody is entitled to rely on the accuracy of the entries in the land register ("öffentlicher Glaube des Grundbuchs").

234 Other jurisdictions are stricter. In Austria, any negligence destroys good faith, § 367 ABGB, and Koziol, H and Welser, R (1991) Grundriß des bürgerlichen Rechts II Manz 80 with further references.

234 In fact, this burden of proof provision is hidden in the wording and construction of the first sentence of § 932 "... es sei denn, daß ... [der Erwerber] ... nicht in gutem Glauben ist ...", as is typical of the BGB, and one example of its numerous drafting weaknesses, which strive for technical brilliance, not clarity, see also Zweigert; K and Kötz, H Introduction to Comparative Law supra note 1 at 145. Only academic writing helps identifying clearly the existence of this burden of proof rule, e.g. Baur/Stürner, § 52 n 25.

235 However, it is acceptable for a commercial transaction under the Commercial Code in certain circumstances, see § 366 HGB (Handelsgesetzbuch, Commercial Code).

236 Baur/Stürner, § 52 n 37.

237 In Austria, for example, there is only a bona fide acquisition if the contract effecting the transfer of the res was against payment, § 367 ABGB (in the new version as of 1 Jan 2007): "daß er die Sache gegen Entgelt [...] erworben hat". The effect is in most cases the same as in Germany. However, there are differences if a further transaction takes place after the bona fide acquisition and before the claim of the original owner. In Germany, the acquirer can pass ownership derivatively to a third party in the meantime, in Austria not, because the acquirer has never become owner.

238 Bridge, 115, 117; Ulph, J 'Good Faith and Due Diligence' supra note 221 at 404, 420; Goode, 417, 424.

239 Bridge, 117.

240 The most common practical example today is in relation to currency: the transfer of money (banknotes, coins) as a currency (not e.g. as antiques) to a transferee taking in good faith and for valuable consideration gives a good title to the recipient, Miller v Race (1758) 1 Burr 452. Money does not qualify as "goods" for the Sale of Goods Act, s. 61, so the Act does not apply to these transactions.

241 The restatement of the principle of nemo dat quod non habet is also in the Sale of Goods Act, s. 21 (1).

242 Goode, 417, 425, 426.

243 It did not apply in Scotland, see Sale of Goods Act, s. 22 (2), or in Wales, see Laws in Wales Act 1542, (former) s. 47.

244 Sale of Goods (Amendment) Act 1994, s. 1, in force since 1995. See Goode, 425. On the history and operation of the rule before 1995 (and this rule remains in force for all sales before 1995), see Davenport, B and Ross, A 'Market Overt' in Palmer, N and McKendrick, E (eds) (1998) Interests in Goods (2nd ed) LLP Reference Publishing 337-352.

245 Goode, 425, 430, 434, Bridge, 122, 129, 133.

246 That is, the trustee (whether under an express trust or a resulting or constructive trust) has misappropriated or misdirected trust property by transferring legal title in it to a third party or himself.

247 Worthington, S (2006) Equity (2nd ed) Clarendon Law Series, Oxford University Press, 87-89, 95-96; Hayton, D and Mitchell, Ch (Hayton and Marshall) Commentary and Cases on the Law of Trusts supra note 145 at 799-800.

248 The technical term of "Subsumption" German law (broadly, the incorporation under a more general category) in has tellingly no exact equivalent in English law.

249 Compare Legrand, P 'The Same and the Different' in Legrand, P and Munday, R (eds) (2003) Comparative Legal

Studies: Traditions and Transitions Cambridge University Press 240, 276, 298-301.

250 Goode, 417.

251 Lord Millett in Shogun Finance v. Hudson [2003] UKHL 62 para 86, [2004] 1 AC 919, 954.

252 Goode, 417-418, 423.

253 And ss. 8 and 9 of the Factors Act, respectively.

254 Schwab/Prütting § 35 n 427.

255 The acquisition in good faith rule under s. 24 does not apply if the seller does not have the right to sell in the first place, see Bridge, 130.

256 The equal scenario is that of the agent apparently transferring ownership to the second buyer, compare Sale of Goods Act, s. 24. See also the almost identical provision of the Factors Act, s. 8.

257 There is authority to the effect that constructive delivery suffices. On the problems of this view, see Goode, 432.

258 Pacific Motor Auctions Ltd v. Motor Credits Ltd [1965] AC 867, PC, Bridge, 130-131, Goode, 431.

259 Bridge, 132. The rule operates against the seller, not, if applicable, against the true owner. If the seller has stolen the goods from the owner, sells them to the buyer and the buyer in turn re-sells them, the third party cannot resist the owner's claim, see National Employers' Mutual General Insurance Association v. Jones [1990] 1 AC 24, Goode, 437-438, Bridge, 135.

260 Goode, 434.

261 Bridge, 122-124, Goode, 425.

262 This rule is also important for the unauthorised creation of a pledge in favour of a bona fide pledgee, see below under F.1.a). See for more discussion, Goode, 426-430.

263 Schwab/Prütting, § 35 n 423, Baur/Stürner, § 52 nn 8-10, Goode, 417 et passim.

264 See § 932 (2) BGB, Schwab/Prütting, § 35 n 425.

265 See Sale of Goods Act, s. 61 (3).

266 See discussion in Ulph, J 'Good Faith and Due Diligence' supra note 221 at 407-409.

267 In German doctrine the view that acquisition in good faith is an instance of original acquisition is disputed, see Schwab/Prütting, § 35 n 441.

268 Birks, P 'Mixtures' in Palmer, N and McKendrick, E (eds) (1998) Interests in Goods (2nd ed) LLP Reference Publishing 227, 232.

269 The BGB devotes no less than four sections (§§ 961-964 BGB) on the occupancy of a swarm of bees, perhaps wishing to follow duly Roman law sources, such as Gaius D 41,1,5,2. The eager reader, who feels missing out on this essential part of legislation, is referred to German property law textbooks, e.g. Westermann/Gursky, § 58 V.

270 Baur/Stürner, § 53 n 78.

271 Bell, 68; Crossley Vaines Personal Property supra note 29 at 336.

272 Parker v. British Airways Board [1982] QB 1004.

273 Bell, 40. The rules are quite intricate in the detail and depend on other criteria, such as whether the thing in question is on the land or buried in, or attached to, the land, or is lying in or on chattels, see Bell 40-46.

274 Baur/Stürner, § 53 nn 85, 88.

275 Lawson and Rudden, 155. But see also the time limit of 12 years for actions to recover land, Limitations Act 1980, s. 15

(1). Whether there is in case of chattels an equivalent of "adverse possession" in land law is unclear, at least for English law (US law seems to have recognised adverse possession for chattels), see Redmond-Cooper, R 'Time Limits in Actions to Recover Chattels' in Palmer, N and McKendrick, E (eds) (1998) Interests in Goods (2nd ed) LLP Reference Publishing 937, 949-950.

276 Limitation Act 1980, s. 2.

277 Murphy, T et al. Understanding Property Law supra note 55 at 65. Thus he must be a dishonest taker opening himself up to liability in conversion.

278 Limitation Act 1980, s. 3 (2). See also Worthington, S Personal Property Law supra note 3 at 658.

279 Somewhat different in Birks, P 'Mixtures' supra note 268 at 227-228 for English law who uses a narrower meaning of accession.

280 Although potentially involving immoveable property, accession is discussed here in the context of moveable property law for the sake of convenience.

281 See below, F.1.d).

282 Van Vliet, L P W (2002) 'Accession of Movables to Land: I and II' (6) Edinburgh Law Review 67-86 (on Dutch, German, Scots and English Law), and 199-216 (on French and South African Law).

283 On mixtures in English law, see Birks, P 'Mixtures' supra note 268 at 235-246.

284 This rule shows an influence of the Sabinian school in Roman law, while the general rule in § 950 BGB is essentially Proculian/Justinianic, see Schwab/Prütting, § 38 n 461; Palmer, N and Hudson, A 'Improving Stolen Chattels' in Palmer, N and McKendrick, E (eds) (1998) Interests in Goods (2nd ed) LLP Reference Publishing 919, 934; Birks, P 'Mixtures' supra note 268 at 228 n 3.

285 Baur/Stürner, § 53 n 14; Däubler, W (2002) BGB kompakt Deutscher Taschenbuch Verlag 402.

286 Baur/Stürner, § 53 n 20.

287 Baur/Stürner, § 53 n 15.

288 Westermann/Gursky, § 53 III. 1-2 with further references.

289 BGH Neue Juristische Wochenschrift 1977, 274, Westermann/Gursky, § 53 III e) with further references; Baur/Stürner, § 53 nn 15, 22.

290 Baur/Stürner, § 53 n 24: According to the prevalent view, § 951 BGB is not a separate rule of unjustified enrichment, but refers to the general rules, thus the whole law of unjustified enrichment (with all prerequisites etc.) applies, not only its legal consequences.

291 Wolf, M Sachenrecht supra note 130 at § 25.

292 Baur/Stürner, § 53 nn 23, 32.

293 § 951 (2) BGB.

294 Thus English law effectively follows the Proculian, not the Sabinian, school in classical Roman law, see Palmer, N and Hudson, A 'Improving Stolen Chattels' supra note 284 at 934-935, Birks, P 'Mixtures' supra note 268 at 228 n 3.

295 [1981] Ch 25, CA. See also Re Peachdart Ltd [1984] Ch 131. There are several qualifications and provisos to this rule, see Bell, 69.

296 Palmer, N and Hudson, A 'Improving Stolen Chattels' supra note 284 at 935.

297 Allowance for improvement of goods by an improver having acted in the mistaken but honest belief that he had good title to them, Torts (Interference with Goods) Act 1977, s. 6 (1). Whether the old common law allowance under Greenwood v. Bennett [1973] 1 QB 195 is still valid after the enactment of this statute is unclear, see Palmer, N and Hudson, A 'Improving Stolen Chattels' supra note 284 at, 928-929.

298 This is, arguably, a restricted property right, compare Palmer, N and Hudson, A 'Pledge' in Palmer, N and McKendrick, E (eds) (1998) Interests in Goods (2nd ed) LLP Reference Publishing 621, 633, although the notion of a subordinate real right or restricted real right is rooted in Roman law thinking.

299 Compare for the English law, Bridge, 175-176; Palmer, N and Hudson, A 'Pledge' supra note 298 at 621.

300 Rights are not res in German law, see § 90 BGB and above under B.1.

301 Mainly, if not exclusively, dealt with in the German Code of Civil Procedure (Zivilprozeßordnung, ZPO), §§ 803 ZPO et seq.

302 In English law, the pledge is considered as an instance of bailment (see immediately below), and bailment is unavailable for intangible property, Palmer, N and Hudson, A 'Pledge' supra note 298 at 635.

303 Unlike liens to some extent, Bell, 137.

304 The relevant enforcement orders by the court are the Third Party Debt Orders, formerly Garnishee Orders (Civil Procedure Rules, Part 72) and the Charging Orders (Charging Orders Act 1979 and Civil Procedure Rules, Part 73). See Adenas, M 'England and Wales' (National Report), in Adenas, M et al (eds) (2005) Enforcement Agency Practice in Europe The British Institute of International and Comparative Law 131, 138-142.

305 Baur/Stürner, § 55 nn 3-7; Westermann/Gursky, § 127 II.

306 Compare §§ 562, 562a BGB (landlord's pledge in respect of tenant's property on the land/in the flat) which must have had such a scenario in mind.

307 Baur/Stürner, § 55 n 5.

308 On the rei vindicatio, see above under D.2.d).

309 The pawn is technically a pledge but associated with the business of making small advances against pledges by individuals. The term "pawn" is used in such a context and pawnbrokers are also subject to specialist consumer protection legislation (Consumer Credit Act 1974 as amended by the Consumer Credit Act 2006), see Bell, 138, Bridge, 175.

310 Bridge, 177. The difference is that in case of a mortgage, the creditor/mortgagee obtains the powerful remedy of foreclosure which permits him to treat the secured res as his own and to retain any surplus obtained on a subsequent sale of the res. The pledgee cannot foreclose.

311 Compare Palmer, N and Hudson, A 'Pledge' supra note 298 at 622, 635, Bridge, 175-176, Bell, 136, 145.

312 Bell, 148.

313 Palmer, N and Hudson, A 'Pledge' supra note 298 at 637-638.

314 Sewell v. Burdick (1884) 10 App Cas 74, Halliday v. Holgate LR 3 Ex 299, Bridge, 177, Bell, 146

315 Compare the discussion in Palmer and Hudson, 622-623, and Bank of Credit and Commerce International SA v Aboody, unreported, discussed ibid., 623 on pledges on stock-in-trade.

316 Palmer, N and Hudson, A 'Pledge' supra note 298 at 623.

317 For this reason, the floating charge had to be introduced by way of a special statute into Scots property law which is also based on Roman law, see Cabrelli, D (2005) 'The case against the Floating Charge in Scotland' (9) Edinburgh Law Review 407, 409.

318 Lord Macnaghten in Government Stock Investment Co v. Manila Railway Co [1897] AC 81.

319 Compare Lawson and Rudden, 144; Bridge, 189.

320 Palmer, N and Hudson, A 'Pledge' supra note 298 at 628; Bell, 144.

321 Askrigg Pty Ltd v. Student Guild of the Curtin University of Technology (1989) 18 NSWLR 738; Palmer, N and Hudson, A 'Pledge' supra note 298 at 629.

322 See above, D.2.d).

323 Goode, 54, 654 on the priority rules.

324 Palmer, N and Hudson, A 'Pledge' supra note 298 at 624. In case of inchoate pledges where possession has not been transferred, the matter is more complicated and has not been conclusively decided, ibid., 624 and n 31.

325 See above under E.1.

326 See above under E.1. The constitutum possessorium (§ 930 BGB) as a substitute for physical delivery is not available, for the reasons see above. Traditio brevi manu, i.e. where the pledged thing is already in the creditor's possession, is possible (§ 1205 (1) BGB, 2nd sentence).

327 Baur/Stürner, § 55 n 16.

328 Baur/Stürner, § 55 nn 9, 15.

329 Good faith merely in the pledgor's authorisation does not suffice, as in the case of bona fide acquisition of ownership under § 932 BGB.

330 See above under E.2.a); Baur/Stürner, § 55 n 18.

331 Baur/Stürner, § 55 n 9.

332 Westermann/Gursky, § 128 III.

333 In that case, the creditor has to account to the owner of the pledge for his profits (§ 1214 BGB).

334 Especially by way of the rei vindicatio under § 985 BGB, see above under D.2.d).

335 As ownership and pledge are merged, the pledge is normally extinguished, § 1256 (1) BGB. If the payer is not the owner of the pledged thing, he obtains not only the debt but also its securing pledge. For more details see Baur/Stürner, § 55 n 23, 33; Westermann/Gursky § 129 IV, with further references.

336 Where these are not identical. However, returning the pledged res to the debtor, if different from the owner or pledgor, does not extinguish the pledge, see Baur/Stürner, § 55 n 34.

337 The pledgee cannot avoid this legal consequence by stipulating the continuance of the pledge. Such an agreement is void (§ 1253 (1) 2nd sentence).

338 Bell, 136.

339 See Palmer, N and Hudson, A 'Pledge' supra note 298 at 625, 628-629, and above.

340 Palmer, N and Hudson, A 'Pledge' supra note 298 at 633. Against that view, The Odessa [1916] AC 145, 158-159: 'The so-called special property … is in truth no property at all.'

341 Bell, 33, 76. see above under C. and D.1.

342 Palmer, N and Hudson, A 'Pledge' supra note 298 at 633.

343 Palmer, N and Hudson, A 'Pledge' supra note 298 at 631. This is a realistic scenario because possession in law of the pledged res can be transferred by way of constructive possession in which case the the res can be left in the pledgor's custody, ibid., 628.

344 Saville v. Tankred (1748) 1 Vs. Sen. 101, Palmer, N and Hudson, A 'Pledge' supra note 298 at 632.

345 Donald v. Suckling (1866) LR 1 QB 585, Bridge, 176, Bell, 146, 149, Palmer, N and Hudson, A 'Pledge' supra note 298 at 630, 631.

346 Hence the pledge is extinguished when it is not transferred together with the debt secured by the pledge, § 1250 (2) BGB.

347 Bell, 144.

348 Bell, 482.

349 Bridge, 127. See also above under E.2.a).

350 § 1207 BGB referring to §§ 932, 934, 935 BGB, Baur/Stürner, § 55 n 18.

351 Oppenheimer v. Attenborough & Son [1908] 1 KB 221.

352 Compare Bridge, 124-136, Bell, 501-503.

353 Palmer, N and Hudson, A 'Pledge' supra note 298 at 628.

354 The Odessa [1916] AC 145, 159. Palmer, N and Hudson, A 'Pledge' supra note 298 at 640.

355 Reeves v. Capper (1838) 5 Bing. NC 136; Bell, 145; Palmer, N and Hudson, A 'Pledge' supra note 298 at 626. In German law, the pledge would be extinguished, irrespective of a possible contrary stipulation (§ 1253 BGB).

356 Bell, 146.

357 Exceptions exist in relation to goods with fixed or ascertainable market prices, e.g. by reference to a stock exchange etc., in which case the res can be sold in a normal sale, subject to §§ 1221, 1235 BGB.

358 For more details, see Baur/Stürner, § 55 nn 26-28.

359 The fractions of the owner's and creditor's shares is in accordance with the fractions of owed sum and excess within the total of the proceeds, e.g. the debt is for 80, proceeds of sale amount to 100, then the creditor is entitled to 8, the owner to 2 parts.

360 § 1247 BGB, 1st sentence: 'Soweit der Erlös ... dem Pfandgläubiger ... gebührt ...' ('to the extent to which the proceeds are due to the pledgee'). The implications of this provision are not easy to understand from its wording. The matter is often more complicated than this account suggests, see Westermann/Gursky § 130 II 3., with further examples.

361 Lawson and Rudden, 176; Worthington, S Equity supra note 247 at 88-89.

362 Lawson and Rudden, 102-103.

363 Hence German law resorts to co-ownership of the proceeds of sale between pledgor and pledgee, a kind of "vertical division" of ownership instead of the unavailable "horizontal" division into legal and equitable ownership in English law.

364 That would be the German "Treuhand." Thus the term "trust" should not be equated with "Treuhand".

365 Compare also The Odessa [1916] 1 AC 145 (PC), 159: '[The pledgee] must appropriate the proceeds of the sale to the payment of the pledgor's debt, for the money resulting from the sale is the pledgor's money to be so applied.'

366 Matthew v. T M Sutton Ltd [1994] 4 All ER 793; Bridge, 176; Palmer, N and Hudson, A 'Pledge' supra note 298 at 639.

367 Whether equitable pledges exist, is controversial, see Palmer, N and Hudson, A 'Pledge' supra note 298 at 645. They do not exist according to Goode, 41, 627.

368 Palmer, N and Hudson, A 'Pledge' supra note 298 at 644.

369 Hayton, D and Mitchell, Ch (Hayton and Marshall) Commentary and Cases on the Law of Trusts, supra note 145 at 353.

370 Bell, 147; Palmer, N and Hudson, A 'Pledge' supra note 298 at 638-639. There is special consumer protection regulation for the sale of a pawn under the Consumer Credit Act 1974 (amended by the Consumer Credit Act 2006).

371 Compare e.g. Baur/Stürner, § 56 nn 2-3; Bridge, 175; Palmer, N and Hudson, A 'Pledge' supra note 298 at 623.

372 Baur/Stürner, § 56 nn 4, 9.

373 Baur/Stürner, § 57 n 1; Westermann/Westermann, § 44 I.

374 German law, as far as the statutory law is concerned, doee old insolvn equivalent of the security bill of sale in English law under the Bills of Sale Act 1878 and the Bills of Sale Act 1878 (Amendment) Act 1882, which evidences non-possessory security interests in personal chattels, see Bridge, 192-193. However, German law has developed an equivalent to the chattel mortgage (bill of sale) "without any statutory basis, entirely praeter, if not contra legem." See Drobnig, U 'Is Article 9 of the Uniform Commercial Code exportable? A German View' supra note 15 at 369.

375 The constitutum possessorium is not available for the creation of pledges, but it is for the transfer of outright ownership, see above under E.1.

376 Baur/Stürner, § 57 n 8.

377 Baur/Stürner, § 57 nn 15. The procedure regarding the creditor's right to sell the res in case of the debtor's non-payment is discussed in Baur/Stürner, § 57 nn 41-45.

378 BGH Juristenzeitung 1991, 732, case comment by Gerhardt.

379 These restrictions can call the proprietary quality of the equitable interest in question, see discussion by Gretton, G 'Trusts' in Reid, K and Zimmermann, R (eds) (2000) A History of Private Law in Scotland Vol I Oxford University Press 480, 481.

380 Baur/Stürner, § 57 n 2.

381 This is similar to the Scottish trust, although the Scots trust concept goes somewhat beyond that, see Gretton, G 'Trusts' supra note 379 at 482.

382 See § 47 German Insolvency Act (Insolvenzordnung). The matter is more complex, see Baur/Stürner, § 57 nn 39, 40 with further references.

383 See §§ 50, 51 German Insolvency Act.

384 Unlike under the old insolvency provision of § 127 (2) of the old Insolvency Act (Konkursordnung).

385 See § 166 German Insolvency Act (as of 1 Jan 1999). This is because the liquidator is expected to have the interests of the insolvent estate and its creditors as a whole in mind, unlike the secured creditor. On the whole issue, see Baur/Stürner, § 57 n 31.

386 Palmer, N and Hudson, A 'Pledge' supra note 298 at 629; Bell, 146. See also above under F. 1. a).

387 Bell, 183, Bridge, 179, Goode, 586. On the registration provisions for the non-possessory chattel mortgage, Bills of Sale Act 1878, Amendment Acts 1882, 1890, 1891, see Bridge, 192.

388 Law of Property Act 1925, ss. 85-86. Since 1925, a mortgage over land can only be created by way of a charge or (this is rare) by way of a lease.

389 Schwab/Prütting, § 54 n 628.

390 Barclays Bank Ltd. v. Quistclose Investments Ltd. [1970] AC 567 (HL) 579.

391 Hayton, D and Mitchell, Ch (Hayton and Marshall) Commentary and Cases on the Law of Trusts supra note 145 at 205, Worthington, S Equity supra note 247 at 255.

392 Quistclose trusts only operate in relation to money (usually advanced as a loan), not in relation to chattels delivered, see Worthington, S Equity supra note 247 at 256. On the retention of title provisions, see below under F.1.d).

393 There are only equitable, no legal, charges, except for the statutory charge by way of mortgage over land in accordance with the Law of Property Act 1925, ss. 85-86, see Bridge, 182.