40.30 Independent of whether it is sufficient for the buyer to be in good faith regarding the authorization of the seller to transfer title or whether it is required (p. 557) that the buyer in good faith believes the seller to be the owner of the goods, it is clear that where the buyer knows that this is not the case it deserves no protection. It is neither protected by legal systems generally protecting the bona fide purchaser, nor by any of the exceptions to the nemo dat rule in other legal systems. However, the question arises to what extent a legal system is prepared to protect a buyer where the lack of ownership or lack of authorization was recognizable. It is therefore necessary to determine whether and to what extent the buyer is protected where it was negligent in not realizing the real legal situation. In other words, the standard of good faith is decisive.
40.31 At this stage it is important to remember that where a legal system protects the expectation of the buyer to become the owner of the goods—be it as a general rule, be it by way of exception—on account of the buyer’s good faith, the legal effect is an expropriation of the original owner. The standard that is required for the buyer to be in good faith may therefore also serve as a certain corrective tool to the interference with the legal position of the original owner.27
40.32 A first distinction made in comparative analysis of legal systems in this respect is that between a subjective and an objective approach to good faith. The subjective approach is understood to exclusively focus on the state of mind of the recipient while the objective approach focuses on the factual circumstances surrounding the transaction independent of the particular recipient.28
40.33 This distinction is, however, of greater relevance for the methodological approach taken by legal systems to situations where the buyer’s ignorance of the legal situation was due to its own negligence29 than it is for the practical outcome. From a mere technical perspective, those legal systems following a subjective approach to the notion of good faith acknowledge that a buyer who has no actual knowledge of the real legal situation technically is in good faith. However, these legal systems do not allow the buyer to rely on its good faith if the negligence is of a certain severity. Legal systems following an objective approach to the notion of good faith deny the existence of good faith on the part of the buyer to begin with where the factual circumstances indicate a certain degree of negligence on its side. The practical difference of these approaches—if at all existent—is marginal. At the end of the day the question is always whether the buyer’s expectation is protected under the given circumstances of the case.
40.34 At first glance legal systems vary with regard to the applicable standard of good faith. Some systems deny protection to the buyer where it was negligent in not realizing the real legal situation.30 Other legal systems require gross negligence.31 Then again, in common law jurisdictions the relevant phrasing is that the buyer must have acted ‘honestly’.32 While this is understood to mean that the buyer must have acted without positive knowledge of the real legal situation, negligence of the buyer is an important factor to prove that the buyer was not actually in good faith.33 In some instances the necessary corrective measure is provided by the (p. 558) requirement that the transfer was made in the ordinary course of business, for example where the seller is a mercantile agent.34
40.35 While these phrasings appear to indicate practical differences in results achieved, the practical outcomes are by and large uniform. One might find a reason for this in the vagueness of the standards established by legal systems. It is widely agreed that there is no duty on the buyer to inquire into the legal situation. This may only be different where other circumstances indicate to the buyer that the seller is either not the owner or not authorized to transfer title in the goods.35 An important factor in this respect is the proportion of the purchase price to the object of the sales contract.36 Furthermore, the identity of the seller, its conduct, the time and place of the transfer, or unusual payment modalities may require the buyer to make further inquiries.37 In any case, the buyer is well advised to make inquiries, even if no such duty is imputed on it, as the circumstances listed will typically be sufficient to prove the necessary degree of negligence on its part.
40.36 Specific questions arise where public registers technically allow the buyer to take notice of the real legal situation. This is particularly the case where ownership is registered. Typically, such registers only exist for immovable property.38 The most important exceptions to this rule are registers for ships, aircraft, and cars. In some systems the rules on the good-faith acquisition of title from a non-owner do not apply to registered goods to begin with.39 In other systems a distinction is made regarding the purpose of the register. Thus, in France for example, cars, though registered, are encompassed by the rules on the good-faith acquisition of title from a non-owner.40 The register is considered to be only of administrative value.41 This is, however, different for ships and aircraft.42
40.37 In some systems—for example Switzerland—special registers exist for goods which are subject to a title retention clause. Under Swiss law, a retention of title clause is effective only if it is registered at the place of the recipient of the goods. This raises the question whether a buyer is in good faith when contracting with a seller for goods that previously have been sold to the seller under a registered retention of title. In other words, the question is whether the buyer is expected to be aware of a registered retention of title clause. In Switzerland, courts do not (p. 559) deem every buyer to be aware of retention of title clauses and thus to be in bad faith regarding the ownership of the seller.43 Only certain merchants—for example, used car dealers and antiques dealers—are in some instances required to consult the register before the transaction.44