Evaluation of the Constitutionality of Good-Faith Acquisition

• Author: Priit Kama
• Position: Deputy Secretary General Ministry of Justice
• Pages: 23-31

23

JURIDICA INTERNATIONAL XIX/2012

Priit Kama

Deputy Secretary General

Ministry of Justice

Evaluation of the

Constitutionality of Good-Faith

Acquisition

The purpose of this article is to provide an evaluation addressing the specifi c grounds on which the consti-

tutionality of the good-faith acquisition of things ought to be assessed. Since the regulation of the protection

of property in the Estonian Constitution and the regulation of the good-faith acquisition of things in Estonia

constitute solutions that are rather typical within the legal tradition of Continental Europe, the topic can

be viewed in the context of a broader legal discussion, wherein Estonia can be considered only one of many

possible examples.

Three groups of countries may be distinguished in Continental Europe in terms of the acceptability of

the good-faith acquisition of a movable. The fi rst group of countries (e.g., Spain and Portugal) relies on a

notion stemming from Roman law, under which the initial owner may reclaim a movable from a possessor

in good faith, as a rule. The unambiguousness of such regulation is, however, countered by countries’ differ-

ences in the provisions of prescription, exceptions in the case of certain public methods of sale, etc.*1

In other jurisdictions (such as Italy and formerly Sweden), the possibility of good-faith acquisition is

recognised both when the initial owner has voluntarily delivered a thing from his possession and in the case

of the owner being dispossessed of a thing against his will.*2

Modern Estonia belongs to an intermediate group of countries that allow the owner to reclaim a thing

from a possessor in good faith if it was removed from the owner’s possession against said owner’s will.*3

With discrepancies in details, this group includes Germany, Austria, France, and Switzerland, among oth-

ers.*4

The possibility and probability of the good-faith acquisition of immovables depend on which legal

meaning is attributed to an incorrect entry in the land register by the legal system.

An entry in the register can be accorded negative disclosure effect, which allows a person in good faith

to deny a legally existing circumstance that is not evident from the land register, as well as positive disclo-

sure effect, which deems an incorrect entry to be correct for the benefi t of a person in good faith. Negative

disclosure effect has been more widespread in various legal systems than positive disclosure effect. Posi-

tive disclosure effect in various forms is, in addition to Germany, inherent also to the systems of Austria,

1 E. Karner. Gutgläubiger Mobiliarerwerb. Zum Spannungsverhältnis von Bestandschutz und Verkehrsinteressen. Springer-

Verlag 2006, pp. 12–16.

2 Ibid., pp. 16–17.

3 Asjaõigusseadus (Law of Property Act), §95. – RT I 1993, 39, 590; RT I, 29.6.2011, 1 (in Estonian). English text available via

http://www.legaltext.ee/ (most recently accessed on 14.4.2012).

4 Karner (see Note 1), p. 19.