References without law book default to BGB.

Case - Good Faith and Stolen Boat

Facts

Urs (U) steals Oscar’s (O) sailing boat, sells it to Barbara (B), and transfers possession to her. Who is the owner of the boat?

Solution

Slides Solution

• Issue I: Who is the owner of the boat?
• Rule: For a transfer of ownership in line with § 929 S. 1 BGB, the following requirements must be met:
  1. Agreement (that ownership is to pass)
  2. Delivery (of the movable thing)
  3. Right to transfer ownership
• Application:
  • (1) Agreement: Two matching declarations of intent with the intention to be legally bound. U and B agreed. → (+)
  • (2) Delivery: U delivered the boat to B by providing possession. → (+)
  • (3) Right to transfer: U was not the owner (O was), so U had no right to transfer. → (-)
• Conclusion: No transfer of ownership under § 929 S. 1 BGB. O is still the owner.

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• Issue II: Did B become the owner of the boat because of an acquisition in good faith (§§ 929, 932 BGB)?
• Rule: Good faith acquisition under § 932 BGB (requires good faith and that the thing has not been lost/stolen under § 935 BGB).
• Application:
  • (1) Good faith: Assumed B was in good faith under § 932 II BGB (no knowledge or gross negligence regarding U’s lack of ownership). → (+)
  • (2) Not lost: Under § 935 I BGB, good faith acquisition is excluded if the thing was stolen, missing, or lost. Here, the boat was stolen from O. → (-)
• Conclusion: No acquisition in good faith. O is still the owner of the boat.

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• Issue III: Can O demand from B to give back the boat in line with § 985 BGB?
• Rule: Requirements under § 985 BGB:
  1. Claimant is the owner
  2. Respondent is the possessor
  3. Possessor has no right to possess (§ 986 BGB)
• Application:
  • (1) Owner: O is still the owner. → (+)
  • (2) Possessor: B has physical possession. → (+)
  • (3) Right to possess: B has no right to possess against O. → (+)
• Conclusion: O can demand back the boat from B in line with § 985 BGB.

Write-Up

Issue: Can O demand the return of the boat from B under § 985 BGB?

I. Ownership of the Boat
Issue: Who is the current owner of the sailing boat?

1. Transfer of Ownership under § 929 sentence 1 BGB
Rule: A transfer of ownership under § 929 sentence 1 BGB requires an agreement between the parties that ownership should pass, delivery of the thing, and that the transferor has the right to transfer ownership.
Application: U and B agreed on the transfer of ownership, and U delivered the boat to B by transferring physical possession. However, U was not the owner (originally O was) and had no authorization from O to dispose of the boat under § 185 BGB. Thus, U lacked the right to transfer ownership.
Conclusion: A transfer of ownership under § 929 sentence 1 BGB failed.

2. Good Faith Acquisition under § 932 I sentence 1 BGB
Rule: An acquirer may obtain ownership from a non-entitled person in good faith (§ 932 I sentence 1 BGB). The acquirer is in good faith unless they are aware, or due to gross negligence unaware, that the thing does not belong to the disposer (§ 932 II BGB). However, good faith acquisition does not occur if the thing was stolen from the owner, went missing, or was otherwise lost (§ 935 I sentence 1 BGB).
Application: B may have acquired ownership from the non-entitled U in good faith. There are no facts indicating that B knew or had reason to suspect that U was not the true owner; hence, B acted in good faith. However, the facts state that U stole the boat from O. Because the boat was stolen property, a good faith acquisition is excluded by law under § 935 I BGB.
Conclusion: B did not acquire ownership in good faith. O remains the owner of the boat.

II. Claim for Restitution under § 985 BGB
Issue: Can O demand that B return the sailing boat?

Rule: Pursuant to § 985 BGB, an owner may demand the return of a thing from a possessor. The respondent can refuse return if they have a right of possession against the owner under § 986 I BGB.

Application:

1. Owner: As established above, O has not lost ownership and remains the owner of the boat.
2. Possessor: B has physical control over the boat and is therefore its possessor.
3. No Right of Possession: B has no contractual or statutory right of possession against O. B’s contract with U is relative and only gives her rights against U, not against the true owner O. Thus, B has no right of possession.

Conclusion: O can demand that B return the boat pursuant to § 985 BGB.