Supervisor: prof. Paul Varul.
Opponents: prof. Dr. Wolfgang Faber Salzburgi ülikoolist; dr iur Priidu Pärna.
The transferring of ownership in movable property involves everyday transactions conducted by both private persons in seeking to meet their regular needs and entrepreneurs in the course of their business. Nevertheless, participants in trade are often unaware of at which exact moment the full right of ownership is lost or obtained, even where more valuable movables are involved. The necessity examine the legal prerequisites of transferring ownership in movables is underlined by the outstanding role of the relevant norms in both securing the interests of a private person and the smooth yet reliable functioning of the economic exchange. A central aim of the thesis was to provide a comprehensive analysis on the prerequisites and possible modes of implementation of transferring ownership in movable property. The focal point was laid on the question to what extent there are possibilities available to the parties to customise their transfer or to modify some of its aspects. To transfer ownership in movable property, the law firstly requires the conclusion of a 'real agreement' between the transferor and the transferee, and secondly, the delivery of possession to the transferee. Although in case of movables the participants in trade often do not realise the necessity to conclude a separate 'real agreement', this element cannot be seen as a formal requirement inhibiting the trade in movables. It is sufficient if the parties act in a way leading a reasonable person to the conclusion that both parties wished the right of ownership to pass from the transferor to the transferee. The possibilities of concluding a 'real agreement' are wholly flexible and freely customisable. Although the main definition of delivery denotes the physical handing over of the movable to the transferee, the law also sets forth a number of alternatives. It is possible to substitute the factual delivery of possession by concluding agreements with a certain content, thus allowing for a flexible arrangement of the details of transferring ownership also in that respect; e.g., by way of representation. The thesis also examines the model rules on acquisition and loss of ownership of movables contained in the recent Draft Common Frame of Refrence with a view to establishing whether they contain novel and more flexible solutions as compared to those existing in Estonian law. As a result the conclusion is drawn that in most cases both regulations will lead to similar balanced results. When interpreted with a view to the needs of the current socio-economic order, the existing rules are sufficiently flexible, allowing for fully adequate possibilities of customisation.