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Teorie del contratto, pubblicità e apparenza nel trasferimento della proprietà immobiliare
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Nr. Pagine:
51
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This article examines the issues involved in the transfer of real property within civil and common law countries, by taking an eminently comparative legal approach. The emphasis placed in this study is on the principle whereby contracts (such as sales of land) transfer legal estate by consensus in the French and Italian law systems. This principle in itself requires separation of transferred real estate between the contracting parties towards third parties and, at the same time, some declarative form of publicity linked to the party requesting transfer. German law, on the other hand, offers significant analogies to English law as it does indeed to the Torrens System on matters relating to legally enforceable contracts that are based on the French cause (titulus), and to transferred real estate deriving from an autonomous modus adquirendi (German Auflassung and English deed of conveyance), the latter being characterized by abstraction and by constitutive models of publicity structured around real estate. As such, the purpose of this study is to reconstruct historical events that characterized French law on the one hand (ranging from the contractual practices used in uniform law by coutumiers, the legal scholars dealing with natural law, the drafting of the French Civil Code all the way to the subsequent mechanism of legally recorded documents by publicity) and, on the other, affected German and English law alike, on account of redressive systems being developed by the Courts of Equity (think of the conversion doctrine, for instance) and the numerous further legislative reforms on Property Law and Land Registration. The study, therefore, becomes a useful site in which to examine some of the ‘deeper’ systemic choices made in individual legal systems by virtue of traditionally established models. The use of varying mechanisms necessary to materialize transferring real estate in such systems is such as to interact with the principles behind cause (consideration) or abstraction, structure, function and effects of contracts, publicity, as much as the whole theory surrounding legal facts and real estate. However, it is not unusual for the various models of real estate transfer to equally represent cultural features behind a particular way of viewing the law, and to similarly solve the long and still controversial issue affecting the ‘form-substance’ and ‘rule-exception’ dichotomies. The need for legal systems to ensure rapidity and certainty of law and protection measures for third parties seems to have come about not just on account of diverse modes of today’s property transfer, which are as yet indistinctively capable of fulfilling their own purpose, but of the requirement for speedy knowledge of «reality » to blend well with certainty deriving from «appearance» of publicity forms.

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