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Published online by Cambridge University Press: 23 December 2009
(Transfer of property – effect of fraud – effects of execution on property law questions)
B persuades A to sell him a painting. Although B knows that it is an early and unusual work of William Turner, he induces A to believe that the painting was by an unknown artist. The purchase price is fixed at 500 Euros. On 1 March, A delivers the painting to B. B immediately pays the purchase price. On 15 March, C, a creditor of B, executes against B's property, including the painting. On 20 March, A discovers the truth. He avoids the sale on the ground of fraud and demands the return of the painting.
Question
Can A claim the painting free of any rights of B or of the creditor of B?
Discussions
GERMANY
Ownership of the painting passed to B with the conclusion of the real agreement (Einigung) and delivery (§ 929 BGB). As stated supra, the transfer of ownership is independent of the contract of sale. Since in the present case only the contract of sale has been avoided, the transfer of ownership remains valid. A cannot vindicate the painting. He has only a claim against B based on unjust enrichment (§ 812 s. 1 sent. 1, alternative 1 BGB, condictio indebiti).
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