The Relevance of Concepts for the Transfer of Movables Under the Uniform Commercial Code - With a Focus on the Buyer's Protection Against the Seller's Creditors PDF Download

Author: Martin Lilja
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Languages : en
Pages : 64

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Book Description
In the recent European discussion on how rules for the transfer of movable property could be designed in an “optimal” way, several proponents have suggested that a “functional” approach be applied. Proponents of a "functional" approach consider such an approach to be advantageous in that it does not use concepts like “ownership”, but rather deals with different issues separately, by way of directly connecting legally relevant facts (requirements) with specific real-life consequences, without placing an abstract concept, such as “ownership”, in the middle. One of the advantages is that the rules will be understood by everyone - and even “ordinary people” without knowledge of law will be able to apply the rules. In this context, it may be useful to look at American law: Article 2 of the Uniform Commercial Code (U.C.C. or “Code”), dealing with sales of goods including sales-related property law matters, was drafted with the aim of applying a “narrow-issue approach” and designing the law in terms of “step-by-step performance”, thereby replacing the former law (i.e. the Uniform Sales Act of 1906) which made a vast range of consequences dependent on the “transfer of title”. According to the drafters of the Code, such an approach would have the extended benefit of making the law understood by “ordinary people”. The two expectations extracted from conceptions of the functional proponents, as well as from the goals expressed by the drafters of the U.C.C., are that: 1). The U.C.C. is easy to apply (so easy that even laymen will find no challenge in applying the Code); and 2). the U.C.C. has abolished the use of concepts and solves legal issues in the area of transfer of movables by directly connecting legal consequences with relevant legal facts. This article will examine to what extent the U.C.C. approach ultimately complies with the standards set forth by narrow-issue or functional approach theory. This may help in assessing whether American law can - or should - serve as a model for European lawmaking. The question here turns upon whether the conceptions hold true: Is the U.C.C. a code that, with roots in legal realism, has managed to codify a “functional” approach connecting legally relevant facts and consequences directly in a manner making the law easy to apply for laymen (and could this Code thereby serve as a model for Europe)?