3.3.1 Introduction

Documentgegevens:

mr. T.J. Bos, datum 01-05-2023

Datum: 01-05-2023
Auteur: mr. T.J. Bos
JCDI: JCDI:ADS941705:1
Vakgebied(en): Verbintenissenrecht (V)

So far, my analysis has focused on immovable property. However, as mentioned in the introduction, nowadays, other types of assets are just as important in the context of commercial transactions. Examples are company shares, intellectual property rights, permits, claims and contracts.1 The problem with these types of assets, however, is that there is no register that keeps track of their legal status. For this reason, a priority notice cannot exist in the context of these types of assets. This section will demonstrate, however, that it is possible to protect the performance interest of the buyer without awarding the buyer a registered and hence publicly visible right. For this purpose, this section analyses Anglo-American law, more specifically the Vendor Purchaser Constructive Trust (hereafter: VPCT).2

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W. Loof, ‘Securing Debt in a World Without Collateral’, in: B. Akkermans and A. Berlee (eds.), Sjef-Sache (Maastricht Law Series 18), Den Haag: Eleven International Publishing 2021, p. 319.

The VPCT is not by any means an easy doctrine to understand. Anglo-American academics have often submitted that this doctrine is confusing (D.W.M. Waters, The Constructive Trust: The Case for a New Approach in English Law (University of London Legal Series 8), London: Athlone 1964, p. 74 - 87 and should even be abolished (W. Swadling, ‘The Vendor-Purchaser Constructive Trust’, in: S. Degeling & J. Edelman (eds.), Equity in Commercial Law, Sydney: Lawbook co. 2005, p. 488. My analysis of this doctrine is, therefore, somewhat simplified in the interest of readability. For a more detailed overview, see P.G. Turner, Equitable Rights Arising from Specifically Enforceable Contracts (diss. Cambridge), 2010.