Transfer of Ownership by Consent in French Law

Extract

[...] Does the principle of solo consensu transfer of ownership still constitute an effective norm of French law, or has it been stripped of its substance by legislative and contractual adjustments? In French civil law, property has always been considered a fundamental right, and its transfer is one of the most important effects of translatory contracts. Since 1804, the Civil Code has consecrated the principle of consensualism solo consensu, solo consensu, which means that the ownership of a property is transferred by the mere exchange of consents between the parties, without any additional formalities being necessary. [...]

[...] Thus, despite its status as a founding principle, the transfer only by consent appears more as a legal fiction than as a truly operational rule in practice. It is now a theoretical framework to which many exceptions come to provide corrections, so that its scope seems largely reduced. This finding invites reflection on the current reality of the principle and on the extent of the derogations that limit its application, to the point of transforming it into a simple exception. [...]

[...] It aims to ensure the fluidity of exchanges by setting aside any excessive formalities. In doing so, it inscribes itself in the tradition of contractual consensualism, making the will of the parties take precedence over any other formal condition The original idea was simplistic and effective: once the sales contract was concluded, ownership was immediately transferred to the buyer, without any further action being required. Or, the theoretical simplicity and efficiency must be put into perspective with the reality of the business and commercial world. [...]

[...] Thanks to this clause, the seller retains ownership of the good until the full payment of the price. According to Julien Théron, this clause perfectly illustrates the questioning of the transfer only consensu, insofar as it creates a transitional period in which the buyer has the property at their disposal without being its legal owner: « The handing over of the buyer marks then the starting point of the acquisition process. The payment of the price marks the end, the perfection of that one This device, widely used in sales of movable property, is now consecrated by the Civil Code and has become a quasi-systematic practice in commerce, where the seller wishes to protect themselves against the risk of the buyer's insolvency. [...]

[...] The jurisprudence has notably consecrated the idea that the transfer of ownership is not sufficient in itself to confer on the buyer all the attributes of the owner. A striking example is that of conflicts between two successive buyers of the same property. As explained by Philippe Simler, « the transferability to third parties of the transfer of ownership is subject to variable solutions depending on whether it is immovable or movable property. In real estate matters, it is the land registry publication that determines who is truly the owner, and not the exchange of consents. [...]