Modes of Acquiring Ownership: A Comprehensive Guide
Modes of Acquiring Ownership
Introduction
Doctrine and comparative law present two theories regarding the acquisition of ownership and other property rights. One theory posits that both a title and a mode of acquisition are necessary, while the other rejects this distinction.
Traditional Teaching
The traditional teaching asserts that a contract or deed alone is insufficient for the acquisition and transfer of real rights. A mode of acquisition is also required. This principle, rooted in Roman law, distinguishes between the title (remote cause) and the mode of acquisition (proximate cause).
Transferring Ownership Titles
Transferring ownership titles are numerous and varied, often taking the form of contracts such as sale, exchange, donation, or contribution to a company. Some also consider payment in kind as a valid title.
Theories Rejecting the Title/Mode Distinction
Several theories challenge the traditional distinction between title and mode of acquisition:
- Some argue that a title alone is sufficient for acquiring real rights, rendering the mode of acquisition unnecessary or implied. The French Civil Code reflects this view.
- Others, influenced by German law, suggest that the mode of acquisition should be separated from the title. In this perspective, the transfer and acquisition of real rights depend solely on the mode of acquisition, which comprises two stages: the real agreement and the tradition (or inscription for property).
Real Agreement
The real agreement, an abstract act between the transferor and the transferee, signifies their mutual consent to the transfer of the property right. This agreement is distinct from the underlying title or contract.
Article 588: Acquisitions
Article 588 lists various modes of acquisition, including occupation (606), accession (643), tradition (670), succession due to death (951), and adverse possession (2492). This list is not exhaustive, as law itself can also be a mode of acquisition (e.g., legal usufruct of a parent on the property of an unemancipated child).
Classifications of Modes of Acquiring
Primary and Secondary
- Originating (Primary): Ownership is acquired regardless of a prior right of another person (e.g., occupation, accession, prescription).
- Derivative (Secondary): Ownership is acquired based on a preceding right that is transferred from the predecessor to the new owner (e.g., tradition, inheritance upon death).
This classification is crucial for determining the extent of the acquired right. In originating modes, the act itself is sufficient for acquisition. In derivative modes, the predecessor’s right must also be considered, as no one can transfer more rights than they possess.
Universal and Singular Title
- Universal Title: Acquisition of the totality of a person’s assets or a share thereof.
- Singular Title: Acquisition of specific goods.
Occupation and accession are always singular. Succession upon death can be either universal or singular. Tradition and prescription are usually singular, except in cases involving the assignment or limitation of an estate.
Free of Charge and Payment
- Free of Charge: Acquisition without pecuniary sacrifice (e.g., occupation, accession, prescription, succession upon death, and sometimes tradition).
- Consideration (Payment): Acquisition involving monetary compensation (e.g., tradition in the case of sale, expropriation).
Inter Vivos or Mortis Causa
Most modes of acquiring are inter vivos, meaning they do not depend on the death of the person from whom the right is derived. Succession upon death is the exception.
Legal Nature of Modes of Acquiring
Modes of acquiring can be legal facts, legal acts, or a combination of both.
- Occupation: Mixed nature (material apprehension and intention to acquire).
- Accession: Legal fact.
- Tradition: Bilateral legal act.
- Prescription: Mixed nature (possession over time and legal demonstration).
- Succession upon death: Hybrid nature (death of the deceased and acceptance of inheritance).
Application of Modes of Acquiring
The modes of acquiring listed in Article 588 apply to various rights, including real and personal rights.
- Tradition and inheritance upon death apply to both real and personal rights.
- Occupation applies only to ownership.
- Accession and prescription apply to most real rights, except for discontinuous and inapparent easements.
Specific Applications
- Occupation: Tangible, ownerless property.
- Accession: Tangible and real property.
- Prescription: Tangible movable or immovable property, incorporeal real rights (excluding discontinuous and inapparent easements).
- Tradition: Tangible movable and immovable property, intangible property (real and personal rights, except inalienable personal rights).
- Succession upon death: Tangible and intangible property, including legal universals (except non-transferable rights).
Simultaneous Acquisition by Multiple Modes
Acquisition by one mode precludes the need for another.
Title Requirement
A title involving the transfer of ownership is required for acquisition by tradition (Article 675). This is because contracts create personal rights, not real rights. A mode of acquisition (tradition) is necessary to acquire ownership.
Doctrine: Is Title Always Necessary?
Differing views exist on the necessity of a title:
- Some argue that the capacity requirement should apply to all modes of acquiring listed in Article 588, including occupation, accession, and prescription. In succession, the will or law can serve as the title.
- Others believe that a title is only necessary for tradition (Article 675).
- A third perspective suggests that a transferring ownership title is required for tradition and succession upon death, but not for occupation, accession, and prescription.