Transfer of ownership: what role for Scandinavian functionalism in Europe?
Promovendus: Mw. K. Rakneberg Haug
Promotores: Prof.Mr. A.F. Salomons, Prof.Dr. R.J. de Weijs, A. Veneziano
Duur: 1/9/2014 - 31/8/2017
Promotie: Amsterdam, 18/6/2021
The research focuses on the Scandinavian functional approach to transfer of ownership. As opposed to the majority of European legal systems, the Scandinavian legal systems adhere to a conception of ownership as a sum of functions, rather than an inseparable unit. This conception has implications for the rules regarding transfer of ownership. While in so-called unitary transfer systems ownership is transferred as one, applying the same requirements for transfer to all functions of ownership, in functional systems the requirements for transfer differ according to separate functions. The desirability and feasibility of European harmonisation on transfer of ownership have been frequently discussed topics in the field of European Private Law in the latest years, without amounting to substantial results. Thus far the Scandinavian functional approach has been underrepresented in this debate. In the soft law DCFR a default delivery rule was opted for, meaning that a unitary approach was followed (at least by default). The main research question is to what extent the Scandinavian functional approach to transfer of ownership can challenge the predominant unitary approach of the continental legal systems. The aim of the research is threefold: firstly, I seek to scrutinize the meaning and implications of functionalism in regard to transfer of ownership; secondly; I aim to put the spotlight on the Scandinavian functional approach which has received relatively little attention in the debate thus far and to thereby contribute to the building of a platform for discussion between lawyers from unitary and functional transfer systems; and thirdly, I aim to evaluate the merits of the Scandinavian functional approach vs. the continental unitary approach, and to assess what should be the role of the respective transfer approaches in European harmonisation