oa Fundamina : A Journal of Legal History - De koper van onroerend goed krijgt slechts het bezit geleverd. Verkrijgende verjaring? Een vergelijking tussen het klassieke Romeinse recht en het huidige Nederlandse recht
A person who, under classical Roman law, purchased a res mancipi a domino and received it by mere traditio could rely on and plead the exceptio rei venditae et traditae against the seller. He was considered to be a possessor. He was not in bad faith, although he knew that he had not acquired ownership and he could therefore acquire ownership by prescriptive acquisition (usucapio). He did not have to have recourse to longi temporis praescriptio. It is uncertain whether in Dutch law the same person is classified as a possessor or as a detentor. If the judge considers him to be a possessor he is nevertheless in bad faith, and therefore has to have recourse to the equivalent of the longi temporis praescriptio contained in article 3:105 BW. The uncertainty whether such a person may make use of article 3:105 BW at all forms a weak point in our legislation. The fact that he is, at best, a mala fide possessor makes his position less comfortable than the equivalent position in Roman law. The absence of an exceptio doli (and the derivates like the exceptio rei venditae et traditae) or a form of estoppel in our code (and in his predecessors) seems regrettable also in this case. All in all there is less reason under Dutch law to protect a person who has purchased an immoveable thing and recieved it by mere traditio. That his position under modern law is weaker is understandable. Unlike the obsolete mancipatio and in iure cessio the requirement of a notarial deed followed by its entry in the public registers forms a useful legal instrument that enhances legal certainty.
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