Consequences of impaired consent transfers

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Birke Häcker examines the laws of impaired consent transfers of movable property in both English and German contexts, focusing on the interplay of contract law, property law, and unjust enrichment within each system. In two-party scenarios, she analyzes the relationship between contract and conveyance, particularly regarding the transferor's rights if the transferee becomes insolvent. German law addresses these issues through established principles of separation and abstraction, while English law remains ambiguous. Häcker advocates for a generalized power model of 'proprietary restitution,' arguing that conveyances by delivery should be viewed as abstract in both legal systems, although English law lacks the essence of abstraction found in the BGB. She then shifts to three-party situations, considering the rights of third parties who acquire the property before the transferor can reclaim it, which raises issues of bona fide purchase and 'leapfrogging.' Additionally, she explores the transferor's ability to assert rights to traceable substitutes of the object. In her analysis of English law, she contends that the so-called 'third party rights bar to rescission' is not only unnecessary but also fundamentally flawed, advocating for its abolition.