5.3 - Good-Faith Acquirers + Acquisitive Prescription in Dutch Law

Protection of Good-faith Acquirers and Acquisitive Prescription in Dutch Law

Art. 3:86 BW

To protect good-faith buyers of movables and promote commercial certainty.

What is the Basic Rule of Dutch law regarding acquisition from a non-owner?

As a rule, no one can transfer more rights than they have (nemo dat), but Art. 3:86 BW provides a limited exception for good-faith acquirers of movables.

What is the historical background of Art. 3:86 BW?

It is inspired by French law (“possession is title”)

• But Dutch law adopts a narrower and more conditional form of protection.

To which type of property does Art. 3:86 BW apply?

Movable property

• Does not extend to immovables in the same way.

What are the requirements for protection of good-faith third-party purchasers under Art. 3:86 BW?

1. Delivery of possession

2. Valid causa

3. Good faith

4. Non-gratuitous acquisition

Note: All requirements must be met

What does the delivery requirement involve?

Possession must be transferred using a legally recognised form of delivery (Arts. 3:90, 3:91, 3:93 BW)

Which forms of delivery do not trigger protection?

Conditional possession does not give protection against the true owner (Art. 3:90(2) BW)

What is meant by a valid causa?

There must be a valid legal basis for the transfer, such as a sale or exchange.

What is the good-faith requirement under Art. 3:86 BW?

The acquirer must not know, at the moment of obtaining possession, that the transferor lacked the power to dispose.

Are gratuitous acquirers protected under Art. 3:86 BW?

No

• The acquisition must be non-gratuitous; gifts are excluded.

What is the effect if all requirements are fulfilled?

The good-faith acquirer becomes the owner, even though the transferor lacked authority.

What is the position of the original owner once Art. 3:86 BW applies?

The original owner can no longer reclaim the object from the acquirer.

Why does Dutch law limit protection compared to French law?

To balance commercial certainty with protection of the true owner.

• France just cares about commercial certainty.

Dutch vs French Law (Protection of Good-faith Third-party Purchasers)

Dutch law offers limited, conditional protection; French law offers broader protection based largely on possession.

Does Art. 3:86 BW always protect good-faith acquires?

No

• Dutch law limits this protection in certain cases, especially to protect the original owner.

Art. 3:86(3) BW

Stolen Goods

The original owner may reclaim stolen goods from a good-faith acquirer for up to three years after the theft.

What is the effect of Art. 3:86(3) BW on good-faith acquisition?

Protection under Art. 3:86 BW does not apply automatically when the goods are stolen.

Is there an exception for customers who buy stolen goods?

Yes

• A consumer (buyer) may still be protected if they bought the goods from a shop that normally trades in such goods.

What is the policy reason for the consumer exception?

To protect ordinary market transactions and promote commercial certainty for consumers.

What is meant by “conversion” in this context?

Conversion occurs when someone intentionally misappropriates property

• For example, by selling goods they have no right to sell

Is conversion clearly covered by Art. 3:86(3) BW?

No

• It is debated whether Art. 3:86(3) applies only to theft or also to intentional misappropriation.

Two main views on conversion?

• Some argue that protection should be denied in cases of intentional misappropriation

• Others argue that good-faith acquirers may still be protected, depending on the circumstances

What does Art. 3:86 BW show about Dutch property law policy?

It balances commercial certainty with strong protection of the original owner, especially in cases of theft.

What is acquisitive prescription in Dutch law?

A way of acquiring ownership through possession over time, even without being the original owner.

How does Dutch law distinguish types of acquisitive prescription?

Between:

• Short-term prescription (Good Faith)

• Long-term prescription (Bad Faith)

What is regular acquisition prescription under Art. 3:99 BW?

Ownership is acquired through uninterrupted, good-faith possession for a fixed period.

What are the requirements of Art. 3:99 BW for movables?

1. Uninterrupted possession

2. Good faith at the start of possession

3. Possession for three years

When must good faith exist for Art. 3:99 BW?

At the beginning of the possession

What is prescription through a lapse of action under Art. 3:105 BW?

Ownership transfers because the original owner fails to bring a claim within a long period.

What are the requirements of Art. 3:105 BW?

1. Possession by another

2. No legal action by the owner for 20 years

Can a bad-faith possessor acquire ownership under Art. 3:105 BW?

Yes

• Ownership may transfer even if the possessor acted in bad faith or was originally a thief.

Key Comparison: Art. 3:99 BW vs Art. 3:105 BW

• Art. 3:99 BW: short period, requires good faith

• Art. 3:105 BW: long period, good faith not required