The historical development of the Scandinavian functional approach to transfer of ownership: a tale of change and continuity

Abstract

In the field of transfer of ownership, the Scandinavian legal systems currently stand out in a European context by applying a approach, rather than a approach, as the rest of European legal systems do. However, the Scandinavian systems have not always stood apart. The development towards the functional approach - which occurred under the influence of legal realist thought- began around the turn of the 20th century and is often considered completed in the second half of the same century. Prior to this Scandinavian legal doctrine agreed upon a unitary approach. This paper discusses the historical development of the functional approach to transfer of ownership in Scandinavian legal systems. The process of transformation is reviewed through the lens of three different sources of law, namely legal doctrine, legislation and case law. It is found that even though the general view of transfer of ownership underwent major changes with the development of the functional approach, only minor changes occurred in the underlying legal framework. In legal scholarship, which was the driving force of the transformation, we observe an image of great change. However, this development was not mirrored in legislation and case law, which present us with an image of continuity. We are thus confronted with conflicting images in legal scholarship on the one hand and legislation and case law on the other. This triggers the question of how such a great paradigm change could occur with only minor changes to the legal framework. How could two vastly different theories on transfer of ownership fit a virtually unchanged legal framework? The paper proposes an explanation to this question. It suggests that the new functional theory fit the existing legal framework because the legal framework at place already contained many features that were -if not directly functional- at least compatible with a functional approach. This suggests that even though the scholars of the time agreed upon the existence of a unitary transfer requirement in both Sweden and Norway it is questionable whether this was the case, at least in the sense of modern unitary legal systems. Further, the paper offers a possible explanation as to why Scandinavian legal scholars of the time insisted upon a unitary rule despite the fact that the legal framework provided little support for such a theory.