Party Autonomy in International Property Law - Peace Palace Library

7. Article 14 Rome I: A Political Perspective
The passing of title between the assignor and the assignee is an example
of this. Under French substantive law, the conclusion of a contract of sale
between a seller and a buyer has the immediate effect of passing of title
(l’effet translatif du contrat). 19 Thus, French substantive law regards the
passing of title between the parties as a contractual matter, being part
of the law of obligations. Only the effect of an assignment against third
parties is treated as a separate matter. 20 When it comes to Private International
Law, this qualification as a contractual matter is applied in the
same way. However, Dutch and German substantive law would qualify the
transfer of title between assignor and assignee as a proprietary aspect of
an assignment, being part of their respective property laws. Under Dutch
substantive law, one could not separate from the erga omnes effect of the
assignment this passing of title under the assignment between the parties.
Save for a clear provision stating otherwise, the passing of title between
the assignor and the assignee would be qualified as a proprietary aspect
of the assignment and not as a contractual matter, also for the purpose of
Private International Law. If this issue had to be treated differently for the
purpose of Article 14 Rome I, it would be necessary to clarify the wording
of this Article.
Given these differences in legal concepts, how could we arrive at a uniform
autonomous meaning of Article 14 paragraph 1? The Netherlands
thought it should be clarified that Article 14 paragraph 1 Rome I governed
the relationship between assignor assignee as a whole, including the proprietary
aspects of the assignment between them. This is why, contrary to
our own substantive law concepts, the Netherlands, Germany, and Au s-
tria all proposed to amend the wording of Article 14 paragraph 1 Rome I.
The proposal was to refer to the relationship between assignor and assignee
rather than the obligations between them.
The proposed wording of Article 14 paragraph 1 Rome I would lead to
the same result as Article 12 paragraph 1 of the Rome Convention for
the Member States whose law regarded the validity between assignor and
assignee to be a contractual matter. However, it took months of negotiating
before these Member States accepted the arguments put forward by
the German and Dutch delegations. We had to explain why the difference
in legal concept in the various substantive laws on assignment required
19
Article 1583 French Civil Code.
20
Thus, referred to as ‘third party effects of an assignment’ rather than ‘proprietary
aspects of an assignment’.
Paulien M. M. van der Grinten
153
© sellier. european law publishers
www.sellier.de