The relationship between contract of sale and transfer of ownership

Thus far we have considered the basic requirements for a contract of sale to come into existence. We must now turn our attention to the main effects of such a contract. These were twofold.

The Roman separation of obligatory act and conveyance is still maintained in many modern legal systems. In German and South African law conveyance of the property is not only separate from the underlying obligatory act, it is also to be evaluated entirely indepen­dently and on its own merits. It is thus abstract in the sense that ownership may pass, even though the contract of sale might be invalid or might not have come into existence at all. In Rome only mancipatio and in iure cessio were abstract. Traditio was causal in that, in order to transfer ownership, it had to be based on a iusta causa traditionis (as, for example, a valid contract of sale).^[1395] There are legal systems, however, which adopt an entirely different approach. They do not require a separate act of conveyance, but allow ownership to pass upon conclusion of the sale.^[1396] The French code civil provides a fine example.

Its art.

"Elie [sc: the contract of sale] est parfaite entre les parties, et la propriete est acquise de droit a 1'acheteur a 1'egard du vendeur, des qu'on est convenu de la chose et du prix, quoique 3a chose n'ait pas encore ete livree ni le prix payeV'^[1397]

According to both the Roman and the French construction of sale, of course, the purchaser acquires a right to enforce the vendor's obligation to transfer the object sold; but, whereas this is a mere ius in personam in the one system, it is a ius in rem in the other. This difference has practical consequences in two situations.^[1398] If the vendor, after conclusion of the sale but before delivery, has fallen insolvent, the purchaser who is able to assert ownership and thus to remove his object from the bankrupt's estate, is in a much better position than his Roman counterpart, whose personal claim against the vendor competes with all the claims of other creditors. Again, the purchaser's position is more favourable under the French construction where the vendor first sold (but did not deliver) the object to him, and subsequently sold and delivered it to a third party, before either disappearing or becoming insolvent. He can then vindicate the object from the third party. According to Roman law, he would have only his fairly useless personal action against the vendor. Neither of the solutions, inciden­tally, can be said to be more just or equitable than the other. However one decides this conflict, one honest party (either the purchaser or the third party) will have to suffer for the act of a dishonest one. The Roman approach, however, seems to be more conducive to certainty of law and therefore more in line with the requirements of trade and commerce. Once delivery has been made, the position of the transferee is secure, at least in so far as he does not have to fear that previous purchasers might turn up and vindicate the thing from him.^[1399]

2.