Good Faith Acquisition Research Articles

Legal analysis of the risks in art exhibition contracts from the perspective of international law

International art exhibitions can lead to disputes between multiple parties due to their transnational and complex nature, unlike domestic art exhibitions. The “Kiefer” Chinese painting exhibition triggered a series of controversies that should not be overlooked. Professionals in the art industry should reflect on these controversies to gain insights and promote the development of the field. This article focuses on the “Kiefer” incident to discuss the major risk points in the international art exhibition process. The article is divided into three parts. The first part concerns the selection and application of the law, where parties must carefully consider which laws and international rules to apply. The second part addresses the nature of the contract and liability, examining how the applicable law affects the legal nature of the contract and the obligations of the parties involved. The third part deals with unauthorized disposition and judicial seizure, focusing on issues of good faith acquisition when a party receiving artwork illegally disposes of it without the owner’s permission, as well as the problem of judicial seizure and immunity from judicial seizure of artworks (including cultural relics) involved in litigation.

The Advent of Virtual Digital Assets: Analysing its Status in the Fintech Sector

Fintech, or financial technology, introduces the role of technology in finance, which forwards the discussion on big data, artificial intelligence (AI), and machine learning, facilitating investment opportunities. However, it is considered to have been introduced and evolved as the Bitcoin protocol in 2009. Digital assets date with the coining of ‘bit gold.’ This was formulated as a decentralised digital currency. The aim behind introducing such a currency was to have a payment mechanism outside the vigilance of the central authority, with a recurring high value. This laid the foundation of blockchain technology, inaugurating the market in digital assets. The utilisation of distributed ledger technology attracted a lot of financial players towards it. Creating digital assets and their required funding subsists on ongoing market changes and investor demands. Computer codes form the skeletal framework of digital assets and depend on agreement-based computer algorithms for effectuating transactions. These digital assets include an almost exhaustive range of virtual assets. Shifting the discussion to the "good faith acquisition" regime, when the transferee of property acquires a good title irrespective of the defect in the title of the transferor, it is known as "good faith acquisition" or "negotiability," an exception to the general rule: nemo dat quod non habet ("no one gives what they don't have"). In this scenario, good faith acquisition (negotiability) is quite relevant as digital assets transfer functions based on quite complex structures, which can be deceiving in disputes arising from insolvency, etc. This has been brought to light with the example of a digital asset held in custody by a third-party intermediary. Here, the legal status of the asset is uncertain, which creates the problem of determining who has the right to claim ownership over it. This is where the new legal framework for digital assets is needed to clear the air and award digital tokens the status of ‘property’ regarding these issues. The proposed legal framework can take due recourse to legal concepts, such as the law of bailment. This paper seeks to analyse and establish the legitimate status of virtual digital assets globally, slowly transitioning to a virtually driven e-community.

The System of Good Faith Acquisition of Stolen Goods Is Analyzed and Conceived —Starting from the Practice of Criminal Recovery of Public Security Organs

The System of Good Faith Acquisition of Stolen Goods Is Analyzed and Conceived —Starting from the Practice of Criminal Recovery of Public Security Organs

PROTECTION OF BONA FIDE ACQUIRERS OF REAL ESTATE

Good faith acquisition in real estate in Latvian law is very little regulated, and is not defined directly in the regulatory enactments, while the protection of the good faith acquirer stems from interpretations of the legal provisions. In view of the lack of material-legal regulation and uncertainties in it, in particular, the question of obtaining good faith acquisition in real estate refers to conflicting and unpredictable case law - in seemingly similar situations, the court tends to take diametrically opposed decisions. The legislator has not developed guidelines and clear criteria for how, when and by which time, a good faith acquirer of real estate is protected. These conflicting decisions give rise to a debate in the public on the good faith acquirer institute in general and on how the legal provisions relating to it are to be interpreted.

The nemo plus iuris in alium transferre potest principle and the good faith of the purchaser of author’s economic rights

Contractual transfer of author’s economic rights will be effective only when the transferor was authorized to dispose of such rights. Acquiring a right from a person who is not authorized to alienate it is not known to copyright law. In this respect, the Roman principle of Nemo plus iuris in alium transferre potest quam ipse habet is fully applied, which entails a number of consequences. One of such consequences is the uncertainty as to the dispositive effect of an agreement obligating to transfer such rights, which in the era of mass trading in author’s economic rights may lead to significant distortions. Therefore, some proposals are formulated in the literature to protect good faith purchasers. For instance, it is suggested that Art. 169 of the Polish Civil Code may be applied to intangible property rights. Verifying the legitimacy of such a proposal requires the examination of legislative motives behind the solution adopted in the regulation mentioned above and the assessment of those motives from the perspective of the copyright law principles. What is of crucial importance here is to answer the question about the role of the possession of a thing for the legal substantiation of good faith acquisition from an unauthorized person. Rejection of the theory which derives the legitimacy of the person disposing of the right from the very fact of them possessing the thing in fact opens way to consider whether it is possible to adopt a similar solution in the copyright law. The author’s monopoly is completely independent from the possession of the object in which the work is possibly embodied. Therefore, is it dogmatically legitimate to apply Art. 169 of the Civil Code to a purchaser of author’s economic rights? The article attempts to answer this question.

위험제한법 입법 이후의 독일 보전토지채무의 변화

At the time of the institution of the German Civil Code(BGB), the security land charge was recognized only with case and scholarly opinions, but in 2008, the German Civil Code was amended in accordance with the Risk Limitation Act. In Germany, the security land charge occurs at the place of the mortgage, and it is also widely used. It guarantees the claim in question through the security contract between the creditor and the debtor, in other words through the land charge existing with the security contract. The security land charge can transferred separately from the secured claim. This is due to the fact that the security land charge is completely independent of the secured claim. It is also recognized that the assignee can effectively assert his good faith acquisition through the application of the principle of public faith. But with the adoption of the Risk Limitation Act, Paragraph 1192 1a BGB is newly amended. Indeed, legislators are affirmed in the execution of the security land charge for the purpose of debtor protection. This enables the debtor to raise an objection based on the security contract with the original creditor to the assignee who acquired the security land charge in good faith.

Good faith acquisition of ownership in a car under german law (according to the italian judge): note to Tribunale di Ivrea, 20 april 2019, n° 416

The commented decision by the Tribunale di Ivrea, of 20 April 2019, contains three maxims: (i) under Art. 51(1) of Law 218/1995, good faith acquisition of ownership in a movable good (in that case, a motor vehicle) is governed by the law of the State where the good is situated; (ii) the court-appointed expert’s opinion on foreign law goes beyond the assigned tasks where it examines the evidence and applies the rules to the facts, tasks which are not entrusted to the expert and reserved to the judge; (iii) the concept of good faith in § 932 BGB is comparable to that in Art. 1147 C.C.

Harmonization of good faith acquisition: The reason and the method

The purpose of this paper is to show that the diversity of rules on good faith acquisition among EU Member States may cause legal uncertainty and different treatment of similar cases on internal market. I try to demonstrate this diversity and the said consequences by comparing the French, the German and the Dutch approach to good faith acquisition. Based on this comparison I make a plea for harmonization of the rules on good faith acquisition for cross-border transactions only, which should include rules on transfer of ownership and which should be done via regulation.

Joint ownership of spouses and good faith acquisition of immovables by relying in the real estate cadastre

The paper examines the rules on transferring of immovables in the matrimonial ownership regime against the backdrop of general notion of joint ownership and joint ownership (property) of spouses. It explores whether the party who invokes the principle of reliance in the real estate cadastre shall be protected in the absence of an explicit rule guaranteeing the protection of a good faith acquirer in case of an unauthoriesd transfer done by one of the spouses. In other words, should for the sake of protection of confidence in legal transactions, acquisition of ownership and other rights in rem exceptionally be allowed by the good faith acquirer, provided that general presumptions under which confidence in accuracy and completeness of public registry of rights on immovables are fulfilled, in case where ownership was not inscribed as a joint ownership. The answer has been given in the absence of general rules on joint ownership, taking into account existing rules in the neighbouring countries, principle of reliance in the real estate cadastre and with due regard to the stance taken by the highest judicial body in the Republic of Serbia. The conclusion is that a spouse who is not inscribed in the public registry should not benefit from the protection against the good faith acquirer.

Good faith in the context of restitution of cultural property

The paper examines international and supranational rules on good faith in the context of restitution of cultural property. Deviations from the general rules on good faith with regard to the good faith acquisition and adverse possession have been indicated. Instead of insuring acquisition of ownership in conjunction with other preconditions, good faith only entitles an acquirer of the stolen or illegally exported cultural object to a fair compensation. The good faith presumption was abandoned and the burden of proof was imposed on the possessor of the cultural object. At the same time the criteria upon which the good faith ought to be evaluated had been tightened. Concerning gratuitous legal transactions, good faith of a transferee depends on good faith of a transferor. For that reason, a transferee will be prevented from claiming a fair compensation if it would not have been awarded to his transferor. Ultimately, the paper explores in which legal sources and in what manner certain EU Member States have implemented good faith stipulations enshrined in Directive 2014/60/EU. Based on that, the paper suggests possibilities of harmonising law of the Republic of Serbia with the outlined supranational rules.

Comparative law and the quest for optimal rules on the transfer of movables for EuropeThis contribution is based on a lecture at the conference The use of the Functional Method in European and Comparative Property Law (Maastricht, 27 June 2011).

Comparative law and the quest for optimal rules on the transfer of movables for EuropeThis contribution is based on a lecture at the conference The use of the Functional Method in European and Comparative Property Law (Maastricht, 27 June 2011).

The Purpose and Coherence of the Rules on Good Faith Acquisition and Acquisitive Prescription in the European Draft Common Frame of Reference: A Tale of Two Gatekeepers

The drafters of Book VIII of the Draft Common Frame of Reference (DCFR) have consistently tried to formulate rules on the related topics of acquisitive prescription and good faith acquisition to further the underlying policy goals: where ordinary transfer has failed, good faith acquisition should instantly validate transfers a non domino if this is commercially desirable, supplemented by acquisitive prescription stepping in when legal certainty calls for validation at a later date. This article examines the coherence of the DCFR rules on these topics and argues that several requirements for successfully invoking the rules on good faith acquisition and acquisitive prescription are not in accordance with their respective policy goals. The resulting incoherence implies that they will not be able to perform their role as 'gatekeepers of ownership' optimally.

Towards a Rigorous Standard for the Good Faith Acquisition of Antiquities

When antiquities are acquired without a rigorous due diligence process, that acquisition defrauds our heritage by distorting the archaeological record; causing potential harm to other legitimate acquisition of antiquities; perverting the important role museums play in society; and ultimately warping the understanding of our common cultural heritage. Fraud occurs when a defendant intentionally deceives another. Given the flood of scandals plaguing museums, collectors, and dealers, we can state now with some confidence that many of these individuals have committed a fraud on our collective human heritage. Combating this fraud is particularly difficult. Though an existing body of law prohibits and punishes a variety of activities which further the illicit trade, these measures are severely hampered by the mystery surrounding antiquities transactions. With increased scrutiny and a more rigorous and diligent title enquiry by buyers and sellers, these legal measures will become far more effective. At present, details regarding authenticity, title, or even more basic questions such as the origin of an object are intentionally hidden and disguised from public view.Good faith has been used to merely promote commercial convenience and economic efficiency. This article proposes a new theoretical foundation for increased scrutiny of the antiquities trade by constructing a broad basis for the recognition of good faith as a mechanism for eliminating the illicit trade in antiquities. This article articulates three ways in which good faith can play a meaningful role in the trade and transfer of antiquities by examining fraud, limitations periods, and public pressure generally. A strong case for reform can be made if we consider that a family of art forgers living in modest public housing in Bolton, England can easily fool some of the World's leading cultural institutions.

The Acquisition of GmbH Shares in Good Faith

It can take a lifetime from the recognition of a legal problem until it is finally solved. Seventy-nine years after Walter Grau focused attention on gaps in the security of transactions of Gesellschaft mit beschränkter Haftung (GmbH – private limited company) shares, the GmbH reform intends to solve the problem. Until this reform, a prospective buyer of a GmbH share ran the risk that the person transferring the share was, in fact, not the true shareholder and, thus, had no power to assign the share. While the former law did not provide for a bona fide acquisition, the new § 16 (3) of the Gesetz betreffend die Gesellschaften mit beschränkter Haftung (GmbHG – Private Limited Companies Act) protects the true shareholder while also taking into account the buyer's reliance upon the transferor, considering him or her to be the shareholder. This little revolution results in a new kind of good faith acquisition that mixes different elements of “traditional” bona fide rules and adds new details.

The Good Faith Acquisition of Stolen Art

Good faith purchasers of stolen goods fare differently in Western legal systems. American rules favor the owner, while the civil law world protects the good faith purchaser. Oddly, this striking difference is misunderstood or denied or both by American scholars. American lawyer-economists who have considered which is the better rule differ in their perceptions and conclusions, as do the positions taken by non-economists. A related difference exists in the application of statutes of limitation in good faith purchaser cases. Proposals that it would be fairer to split the loss seem bound to fail. A solution involving the Art Loss Register and the New York courts' use of the laches doctrine is more promising.