Publiciteit en derdenbescherming bij de overdracht van verhandelbare activa

Korte inhoud:The property law protection of an original owner or a third-party acquirer is a zero-sum game, with the central issue being who should bear the insolvency risk of their counterparty (the unauthorised disposer). Property law must position itself on a sliding scale, with one end representing full causality, where only the origin of a title is valued, and the other end representing complete abstraction, where provenance is disregarded. In between, there are various gradations depending on whether a third-party acquirer must meet more or fewer conditions to be protected against competing claims. The purpose of property law publicity (i.e., notice) is to create a balance between the respective interests of the original owner and the third-party acquirer. A comparative analysis of nine different asset types reveals that the legal coherence of third-party protection in immovable property can be improved by introducing the requirement of a compensatory acquisition as a condition for third-party protection, codifying the conditions for the application of the doctrine of trust as mentioned in the Supreme Court ruling of 22 January 2021, and providing third-party protection for a bona fide sub-acquirer following a bankruptcy. The study of commercial instruments, shares, and money demonstrates how third-party protection functions as a property law technique, and abstraction as a contract law technique, to commodify assets and thus increase their negotiability. In a certain sense, scriptural money represents the pinnacle of commodification. The legal structure of scriptural money as an independent, irrevocable, and abstract debt claim on the bank makes it the epitome of dynamic legal certainty. Research on Bitcoin shows that the role of property law publicity in the transfer of bitcoins has largely been replaced by a technical form of publicity, with the publicly accessible blockchain playing a central role. Digital signatures and distributed consensus prevent double spending of the same asset - the greatest challenge for any decentralised digital asset system. The pseudonymity of Bitcoin addresses provides additional (non-legal) protection to third-party acquirers. Where the law can still play a role is in recognising property rights in bitcoins without requiring direct possession of the assets. To this end, we propose two concrete suggestions for the legislator: the regulation of ownership rights of depositors following the insolvency of the custodian, and the introduction of an intangible pledge.

Jaar van publicatie:2024

Toegankelijkheid:Closed