물권행위무용론

Real contract: a futile concept

Transactions such as sale or gift have traditionally been regarded as a ‘causa’ which would lead to transfer of title if the thing was delivered or registration of title was done on the basis of such a causa. Friedrich Savigny, however, altered this traditional view by dividing the causa into two categories: ‘contract which gives rise to obligations (to transfer title)’ and ‘contract which has immediate effect of transferring title’. He then proposed that only the latter (real contract; Dingliches Vertrag) must be viewed as causa of title transfer. Korean commentators largely accept this theory and the notion of real contract has been central to an explanation of title transfer. This paper examines whether the concept of real contract indeed provides a satisfactory tool of analysis. Spontaneous gift done without any obligation to give has often been explained to contain a real contract which is deemed to be concluded between the donor and the recipient at the moment the object of gift is delivered. However, this paper discusses circumstances where the title passes even in the absence of an agreement between the donor and the recipient of a gift. As it is possible that a title passes even in the absence of a real contract, the usefulness of the notion of real contract is hard to explain. Where the grounds for passing the title of movables or immovable are fully satisfied (ie., balance has been fully paid, due date has arrived or the defence of simultaneous performance was waived or not available, etc.), there is no need for any further ‘agreement’ to pass the title at the moment of delivery or title registration. Even if the delivery was done against the wishes of the transferor through enforcement proceedings or even if the title registration was completed using forged/stolen documents or fraudulent means, the title passes validly as long as the delivery (in the case of movables) or the title registration (in the case of immovable) was done. If the delivery was done in a stealthy or violent manner, then recovery of possession only (rather than the title) may be at issue (possessory interdict). On the other hand, if the grounds for passing the title of immovable have not (yet) been satisfied, Korean court does not distinguish whether the title registration was done through forged/stolen documents or documents secured by fraudulent means or handed over by mistake. The registration is treated as null and void (rather than voidable). If the notion of ‘real contract’ is to be invoked in connection with registration of title, one would have to conclude that title registration which was done by fraudulent means or documents handed over by mistake should nevertheless be valid but voidable only. This, however, is not the position adopted by Korean courts. Whether the conveyancing was done as performance of an obligation to convey or done as spontaneous gift, the notion of ‘real contract’ is either inadequate or comes into conflict with Korean courts’ position. A more satisfactory approach would be to examine (i) whether the grounds for passing the title have been satisfied and (ii) whether the delivery/title registration was done. There is no need to envisage ‘real contract’ as distinct from the ‘intent’ with which the underlying transactions (sale, gift, etc.) are carried out. Nor is it tenable to conceive ‘real agreement’ as distinct from the mental aspect (‘animus’) which is required in obtaining possession. If ‘real contract’ is invoked with regard to delivery (change of possession), then one would inevitably have to conclude that where the ‘real contract’ was vitiated by mistake or fraud, the transferor who parted with the possession is entitled to rescind the ‘real contract’ and claim the thing back (because the passing of the title