Transfer of ownership on the basis of a sales agreement: some legal nuances

Abstract

The publication is devoted to the analysis of some legal nuances of the transfer of ownership under a sales contract. First, the article describes the general characteristics of contracts aimed at the transfer of ownership and determines the place of a sales contract in their system. It is further established that the moment of transfer of ownership on the basis of a sales contract is not always tied to the time of the contract conclusion.
 Some special norms on the transfer of ownership, which are contained in the general provisions on purchase and sale, are analyzed and their limitations and superficiality are revealed. The absence of special legal regulation stipulated an appeal to the General Part of the Civil Code of Ukraine, where the general rule enshrines the practice of recognizing the moment of acquisition of ownership at the time of transfer for all contracts. Therefore, the paper further analyzes the requirement that the seller’s obligation to transfer the thing is considered fulfilled, which raised doubts about the success of the legislator to give such importance to the transfer while investing only one-sided meaning. Since the position is expressed and substantiated that the transfer of ownership cannot occur at the time of transfer of the goods by the seller, but in case of non-acceptance by the buyer. An important argument in favor of the latter thesis is the legislator’s diverge of the provisions on the transfer of ownership and the transfer of the risk of accidental destruction or accidental damage to goods in certain rules, correctly assuming the possibility of mismatch of the above moments.
 The publication emphasizes that even taking into account the moment of acceptance of the goods by the buyer when determining the moment of transfer of ownership is not always able to solve practical problems that may arise during the transfer of ownership under a sales contract, therefore, a conclusion is formulated on the need to revise the general legislative approach to determining the moment of transfer of ownership and its binding not to a unilateral act (transfer of the thing), but to the moment of action by the other party to the contract aimed at its goal achieving. Given that a sales contract is paid, it is determined that the moment of transfer of ownership should be considered the moment of receipt of counter-satisfaction by the counterparty under the contract (the buyer’s payment of the price for the purchased thing).