KLEŇOVÁ, V.: Modus v systéme kauzálnej tradície (Je modus samostatným, od titulu oddeleným právnym úkonom?).∗ Právny obzor, 106, 2023, č. 4, s. 302 – 320.
https://doi. org/10.31577/pravnyobzor.2023.4.03
Modus in the system of causal traditio (Is modus a separate legal act, distinct from the underlying title?). One of the disputed questions in the legal systems that adopted the “principle of causal traditio” is whether the traditio is a legal act that is distinct from the underlying contract (title) or whether the so-called modus is just an “natural act” (a transfer of possession), the legal part of which is contained in the title. To answer the question, the paper examines the Austrian model, which most faithfully adopted the titulus and modus theory in the ABGB. The Austrian model is also interesting for the reason that, in its more than 200-year tradition, it has evolved from the understanding of traditio as the transfer of possession, which only transfers ownership when it is the solution of a preceding obligation, through the theory of the so-called subjective causa traditionis, which had much in common with the Savigny’s real agreement, under the influence of which it was created, until finally the current debate, in which the opinion that the modus requires a separate contract, the content of which is an agreement to dispose of ownership (real agreement) appears. The analysis of the reasons given to support the latter view has shown that they do not justify the need of the separate real agreement that should be concluded upon delivery. What’s more, this view complicates transfer of ownership in many cases and leads to the consequences that are in direct conflict with the causal transfer. in a causal system, the will to transfer the ownership is included in the title; in this, the parties also agree on when and how ownership should pass; if the transferor disposes of the thing in the agreed manner, he transfers ownership to the acquirer.
Key words: titulus and modus theory, causal and abstract transfer theories, real agreement, transfer of ownership of movables
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