The Cession of the Vindication Claim as a Way of the Property Transfer Surrogate in Germany and Prospects in Russia

Abstract

The article analyzes the genesis of the German doctrinal and judicial approaches to the conditions for the applying of the assignment of the vindication claim as a surrogate transfer of the property when it is alienated to the acquirer. The purpose of the research is to identify the prerequisites and prospects for the reception of this legal design for its implementation in Russian civil law. The paper uses the methodology of comparative jurisprudence and structural-functional analysis, on the basis of which the legal nature of the vindication claim, its dependence on the ownership and the specificity of the transaction property execution are identified. The article deals with two opposing positions: 1) the cession of vindication is necessary if the property is in the possession of the third person; 2) the right to vindication arises automatically after the alienation of the property. The presence of the relative relationship between the title holder and the violator of possession allows to substantiate the obligatory nature of the vindication and the possibility of assigning the right to it. However, this is possible only if the title is transferred to the assignee at the same time, because the claim has a property-legal characteristic. Vindication temporarily expresses the ownership in the period of the violation of possession and confirms the legal dominance over the thing. A cession of vindication is not a purpose of the aleatory alienation transaction, but it is a way of thing quasi-transfer, which means the contract enforcement on the part of the alienator, when the thing is in the direct actual possession of a third person. It excludes the contractual liability of the trader for the lack of tradition in favor of the acquirer, because the thing transfer surrogate is an effective way to complete the transfer of the ownership and risks.