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Title: Consequences of Impaired Consent Transfers: A Structural Comparison of English and German Law.
Author: Häcker, Birke
ISNI:       0000 0000 6687 676X
Awarding Body: University of Oxford
Current Institution: University of Oxford
Date of Award: 2007
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This thesis explores the English and German law on impaired consent transfers of movable property in comparative perspective. It seeks to expose the fundamental structures shaping the legal analysis of such transfers and their unwinding in both systems, paying particular attention to the interaction between different rules and prinCiples of contract law, property law and the law (2) of unjust(ified) enrichment. After an introductory overview, the thesis begins by describing, comparing and contrasting the English and German solutions in cases involving only the transferor and the transferee ('twoparty cases'). Questions such as the scope of recovery, the relationship between contract and conveyance, the nature of any remedy available to the transferor and its treatment in the transferee's insolvency are put into comparative focus without being severed from their proper conceptual context. With regard to the still unsettled English position, the thesis argues for a generalised power model of proprietary restitution. It seeks to demonstrate that conveyances by delivery are best regarded as 'abstract' in English as well as German law, but explains why much of the gist of abstraction as espoused by the German BGB is lacking in English law.. The second main part of the thesis concerns the special issues raised by 'three-party cases'. Building on the preceding analysis, it examines the position of third parties who have acquired the object in question from the transferee before the transferor has had a chance to reclaim it. As far as the relationship between the transferor and the transferee is concerned, it calls for the abolition of the so-called 'third party rights bar to rescission' in English law. It also highlights similarities and differences in the extent to which both legal systems allow the transferor to claim the object's traceable substitutes from the transferee (or from third parties).
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available