Chapter 5: Title laundering in complex ‘lock’ jurisdictions
In later ius commune development concerning purchases from someone who does not own what is sold, the view that moveables cannot be pursued (mobilia non habent sequelam) came to compete with that axiom of property law expressed in the maxim that nobody can transfer a greater right than she owns (nemo plus iuris transferre potest quam ipse habet). The policy basis of the former is the perceived commercial imperative that, in principle, the bona fide purchaser of a moveable thing, in a normal market context, should get a good title regardless of provenance. The latter prevents the bona fide purchaser from acquiring title if the transferor did not have title to convey, or from claiming compensation when restitution is made to the owner. The tension between the two positions is reflected in the range of solutions of modern European law concerning whether and when the prior title of the owner is extinguished or his action for restitution is barred. Legal systems tend to reflect a preference between these two approaches in corporeal moveable property title issues in general. A few legal systems make exceptions for cultural moveables. Others apply specific rules that safeguard the public interest associated with different public and private rights by means of restricted transfer, indefeasible title, imprescriptability or public domain rules. Cultural objects merit special treatment, but general commercial law rules are readily extended to proprietary rights in these objects, even when smuggling is suspected.
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.