Party Autonomy in International Property Law - Peace Palace Library

A. General Aspects of Party Autonomy
the receivables are, by their terms, non-assignable. 7 Registrable securities
such as shares may only be transferred by alteration of the share register. 8
If securities such as shares could be transferred by agreement alone, how
could the parties the share imposed duties upon, in particular the company,
know to whom they were supposed to perform? The disposition of an
equitable interest, the nature of which we will come to, may be executed
by contract alone, but this must be in writing signed by the person disposing
of the same or by his agent. 9 Similarly, the assignment of a trade
mark 10 , copyright, 11 design, 12 or patent 13 must be in writing and signed by
or on behalf of the assignor. Those intellectual property rights which are
registrable also need to be so registered in order to be fully effective as
against third parties. 14
Goods are different. The title to goods can, of course, be transferred by
deed or by delivery (e.g. Christmas presents) but their peculiarity lies in
the fact that the right to goods can be conveyed by a contract in any form
without more. One of the phrases English lawyers learn before they can
walk is that ‘property passes when intended to pass’. 15 This magic spell
embodies the rule that title to goods can be conveyed without the need
for any further step or special form to perfect it: the contract alone suffices.
Here, at least, the Germanic separation between contract and conveyance,
Trennungsprinzip, is not found at all. The explanation as to why the
law for the transfer of the right to goods should be different from the law
for the transfer of all other rights appears to be historical accident.
7
Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85.
8
Technically, where what is “transferred” is a share what the ‘transferee’ acquires
is a new share by way of novation, the ‘transferor’’s old rights being
cancelled. See M. Ooi, Shares and Other Securities in the Conflict of Laws
(Oxford University Press, 2003). A share is a proportionate right as against
the company and other shareholders, the rights of all shareholders of the same
class are the same.
9
Law of Property Act 1925, s 53(1)(c).
10
Trade Marks Act 1994, s 24(3).
11
Copyright, Designs and Patents Act 1988, s 90(3).
12
Copyright, Designs and Patents Act 1988, s 222(3).
13
Patents Act 1977, s 30(6).
14
Patents Act 1977, s 33; Trade Marks Act 1994, s 25.
15
Sale of Goods Act 1979, s 17.
88
Robert Stevens
© sellier. european law publishers
www.sellier.de