Jan Tryzna
Author’s affiliation: Faculty of Law, Charles University in Prague

Nemo plus iuris transferre potest. Or can one?

Jurisprudence 3/2016 Section: Articles Page: 3-10

Keywords: transfer of the property, bona fides, Supreme Court, Constitutional Court, not a real owner

Abstract: The topic deals with the possibility of the transfer of property in case the transferor is not an appropriate owner of the property. As a principle, the former Civil Code and the Commercial Code did not allow for the transfer of the property when the transferor was not the real owner. As a consequence, the acquirer could not become the real owner as well. There were some exceptions to this principle. A very limited one was in the Civil Code, another one was in the Commercial Code. The latter was much broader. During the time, a problem arose with the transfer of property ruled by the Civil Code (especially the immovables). The case was that the acquirer of some property acquired the property bona fides and transferred the property to a third party but the legal title (i. e. the transfer contract) was invalid or was later cancelled. According to the Supreme Court of the Czech Republic, the third party could not have acquired the property in such cases. According to the Constitutional Court the acquirer´s bone fides deserves constitutional protection. A dispute between these two courts arose. The article explains the cause of this dispute. It follows the arguments of both courts.