Party Autonomy in International Property Law - Peace Palace Library

B. Private International (Property) Law
S out of his predicament: The court argued that the title clause contained
a tacit substantive agreement between the parties that full property should
be transferred back from B to S after B had acquired possession of the
goods in order to securitise the seller’s claim for payment. Many academics
criticised the Court for this tongue-in-cheek approach: Denying party
autonomy in international property law while at the same time inventing
a tacit agreement under substantive law in order to compensate for
this deficit was not perceived as methodologically candid and proper. 24
It would be preferable, the critics argued, simply to honour the parties’
tacit choice of German law as the law of the country of destination. 25 The
compromise between the court’s adherence to lex rei sitae and academic
calls for party autonomy is found in Article 43(3) EGBGB: An unfinished
transfer (or retention) of ownership (under Italian law) is ‘perfected’ when
the knitting machine crosses the (German) border. The retention of title
clause which was only valid inter partes in Italy is transmogrified into an
erga omnes rule. Thus, in this specific group of cases, there is no longer
any practical need for the parties to agree on the law of the country of
destination as applicable to the retention of title clause, because Article
43(3) EGBGB ensures the validation of the clause. Formally, this is only
a unilateral conflicts rule, as it refers simply to ‘an interest in property
brought into this state [i.e. Germany]’. This approach was deliberately
chosen because the drafters were reluctant to meddle with the substantive
property law of other nations. 26 In academia, however, a multilateralisation
is favoured. 27 Why should the Italian seller be treated differently if
he had exported the knitting machine not into Germany but into Utopia,
which also recognises oral retention of title clauses?
c) Cross-border pollution
Another point of entry for party autonomy in international property law
is found in Article 44 EGBGB, which concerns cross-border polluting
24
See the references supra note 13.
25
See the references supra note 13.
26
Bundestags-Drucksache 14 / 343, p. 16; see also Kreuzer (supra note 18),
p. 450.
27
Kegel / ​Schurig, Internationales Privatrecht, 9 th ed. 2004, p. 773; Wendehorst,
in: Rixecker / ​Säcker (eds.), Münchener Kommentar zum Bürgerlichen Gesetzbuch,
5 th ed. 2009, Art. 43 EGBGB para. 173; this is rejected, however, by
JurisPK / ​Kieninger (supra note 20) Art. 43 EGBGB para. 36.
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Jan von Hein
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