Bezit te kwader trouw, verkrijgende en bevrijdende verjaring. Een leerstellige, rechtsvergelijkende studie op historische grondslag

PhD ceremony: Mr. J.E. Jansen, 16.15 uur, Academiegebouw, Broerstraat 5, Groningen

Title: Bezit te kwader trouw, verkrijgende en bevrijdende verjaring. Een leerstellige, rechtsvergelijkende studie op historische grondslag

Promotor(s): prof. F. Brandsma, prof. J.H.A. Lokin

Faculty: Law

 

Article 3:105 Dutch Civil Code designates of lifts the possessor in bad faith to owner after a period of twenty years and one day. Thus an art thief can acquire ownership of the painting he steals. Someone who enlarges his garden by simply replacing the fence can acquire ownership of the occupied piece of land. When the owner who loses his right cannot prevent the acquisition by the possessor in bad faith, or when the owner does not know that he is in threat of losing his right, it seems unfair that the owner should yield to the possessor in bad faith. In this book I try to answer the question whether article 3:105 should remain in place, be abolished, or should be adjusted. The answer is given by comparing Dutch law to successively Roman law, German law, Anglo-American law and French law. The conclusion is that the loss of ownership that is beneficial to a possessor in bad faith cannot be justified by simply referring to legal certainty. The loss of ownership that benefits a possessor in bad faith can only be justified when the owner could have prevented his loss, but failed to do so. His loss is then considered his own fault. Consequently the legislator would be well advised to adjust article 3:105 Dutch Civil Code concerning easements and chattels.