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may be asked whether that right, power or privilege can be transferred to someone
else. The general assumption in Western law is that it can be. Freedom of contract
and freedom of alienation of property are the twin foundations of a market economy,
and despite the extensive regulation and socialization of the market economies of
the West, the basic principle has remained unimpaired.
Any legal system that distinguishes between property and obligation (as do all
Western systems) will distinguish between a promise to alienate property and the
alienation itself. The promise may be fully enforceable between the parties; it may
even affect the rights of third parties, at least those who know of the promise.
But until property is transferred, the original owner has a real right in the
property (good, notionally, against the whole world), and the promisee has simply
an enforceable obligation to have the property transferred.
In many transactions the contract and the conveyance take place simultaneously so
that the distinction between the two makes no practical difference. If person A
buys a watch at a jeweller’s, pays for it, and walks out of the store with it on
his/her wrist, both a contract of sale and a conveyance of the watch have taken
place; there is no need to distinguish between the two. If, however, person A does
not pay for the watch but wears it out of the store and then transfers it to some
third person, it becomes important to know whether the jeweller still owned the
watch when it was transferred (in which case the jeweller may recover it from the
third person) or whether person A owned the watch (in which case the third person
now owns it, and the jeweller’s sole remedy is against person A). Similarly, if
person A pays for the watch but leaves it with the jeweller to have a strap put on
it, and the jeweller transfers it to some third party before person A comes back to
pick it up, it becomes important to know whether the jeweller still owned the watch
(in which case the third party now owns it and person A’s sole remedy is against
the jeweller) or whether person A owned the watch as soon as he/she paid for it (in
which case he/she may recover the watch from the third party, and his/her remedy,
if any, will be against the jeweller).
In the example given above there are three possible points at which the title to
the property could pass: (1) when the contract between the jeweller and person A
was formed (normally when they have agreed on a price and a thing to be sold); (2)
when person A paid for the watch, or (3) when the jeweller handed over the watch to
him/her. As a general matter, Western law takes the first or the third position and
leaves the second possibility to private agreement between the parties. Thus, in
the absence of agreement to the contrary, Western law generally provides that
transfer of title takes place either when a valid agreement to transfer is made or
when the thing is delivered to the conveyee.
În exemplul dat mai sus, există trei puncte posibile în care ar putea trece titlul
de proprietate: (1) când s-a format contractul între bijutier și persoana A (în mod
normal, atunci când au convenit asupra unui preț și a unui lucru de vândut ); (2)
când persoana A a plătit ceasul sau (3) când bijutierul i-a predat ceasul. Ca o
chestiune generală, dreptul occidental ia prima sau a treia poziție și lasă a doua
posibilitate acordului privat între părți. Astfel, în absența unui acord contrar,
legislația occidentală prevede, în general, că transferul de titluri are loc fie
atunci când se face un acord valid de transfer, fie când lucrul este livrat către
expeditor.
In the example of the watch, the distinction between contract and conveyance became
important as soon as the rights of a third person were involved. But from the point
of view of the third party any one of the three suggested rules about conveyance
might be unsatisfactory, because it may be difficult for the third party to know
whether a contract has been formed, a payment under it has been made, or even
whether the property has been delivered to the purchaser as owner, as opposed to as
borrower or hirer.
To protect third parties in these situations, many legal systems provide for the
registration or recordation of transactions, particularly transactions involving
items of great value (such as airplanes or boats or cars) or items of great
durability (such as land).