Transfer and delivery

Transfer and delivery

Ownership of a good only passes when the requirements for a valid transfer have been met. It is therefore possible that something is purchased, the purchase agreement is concluded, but that ownership does not (yet) pass to the buyer. A striking example is hire purchase or purchase with retention of title.

The law sets a number of requirements for a valid transfer:

• There must be a valid title
• The seller must have the authority to dispose of the property
• A valid delivery must take place

Valid title:
A valid title is, for example, a purchase agreement, a gift, or an enforcement order granted by the court.

Authority to dispose:
Only the lawful owner has the authority to dispose. If the seller does not have the authority to dispose, a buyer who assumes that the seller is the lawful owner may, under certain circumstances, invoke third-party protection.

Valid delivery:
The law recognizes a number of methods of delivery, namely:

• De facto conferral of power
• Shorthanded delivery
• Delivery by hand

In practice, property law disputes can arise following the transfer of goods. We have the knowledge and expertise to assume various roles: from advice to dispute resolution. We have an experienced team of lawyers and legal experts in the field of property law. Contact us to discuss the possibilities.

The three requirements of Article 3:84 of the Dutch Civil Code

The legal basis for transfer is found in Article 3:84, paragraph 1 of the Dutch Civil Code: “Transfer of a good requires delivery pursuant to a valid title, performed by the person authorized to dispose of the good.” Ownership is only actually transferred when all three requirements—valid title, authority to dispose, and a valid act of delivery—are met simultaneously. If one element is missing, the original owner remains entitled, no matter how clear the parties’ intentions were.

The Netherlands operates under a causal system: title and delivery are inextricably linked. If the title subsequently proves to be void or annulled, the basis for delivery is lost, and the transfer is deemed never to have taken place retroactively. This distinguishes Dutch law from the German abstract system, in which a defective title generally leaves the transfer of ownership unaffected. For entrepreneurs—from an international group to the baker on the corner—this difference is of great importance in cross-border transactions.

Delivery by type of goods: movable, immovable and claims

The law prescribes how delivery must be made for each category of goods. The form of delivery partly determines whether ownership is legally transferred:

• Movable property (Article 3:90 of the Dutch Civil Code): delivery takes place by transfer of possession. As a rule, actually placing it in the possession of the acquirer suffices (Article 3:91 of the Dutch Civil Code).
• Immovable property and registered assets (Article 3:89 of the Dutch Civil Code): a notarial deed followed by registration in the public registers of the Land Registry is required. See also our page on Registered Assets.
• Registered claims (Article 3:94 of the Dutch Civil Code, assignment): transfer is effected by a deed and notification to the debtor (public assignment) or, without notification, via a registered or authentic deed (silent assignment).

In addition to the actual transfer of possession, the law recognizes delivery brevi manu (with the short hand, for the person who already holds the property), longa manu (with the long hand, delivery to a third-party holder, Article 3:115 of the Dutch Civil Code), and constitutum possessorium (the transferor henceforth holds the object for the transferee).

Power of disposal and protection of third parties

In principle, only the rightful owner has the power of disposition. If someone transfers property that does not belong to them, the transfer fails—unless the acquirer is protected. In the case of movable property that is not registered property, Article 3:86 of the Dutch Civil Code protects the acquirer who acquires in good faith and otherwise than gratuitously: the lack of power of disposition is then “remedyed,” and the transfer is valid after all. For registered property, Article 3:88 of the Dutch Civil Code offers protection under stricter conditions, linked to the reliability of the public registers. The limits of this protection—for example, in the case of stolen property (Article 3:86 paragraph 3 of the Dutch Civil Code)—regularly lead to disputes in practice, which we litigate for entrepreneurs and private individuals. Read more about Possession and Ownership.

Retention of title and conditional assignment

Many suppliers deliver subject to retention of title: the goods are physically transferred to the purchaser, but ownership remains with the supplier until the purchase price has been paid in full. Legally, under Article 3:92 of the Dutch Civil Code, this is regarded as a transfer subject to a suspensive condition of payment. The purchaser immediately acquires a conditional right of ownership; in the event of non-payment, the supplier can reclaim the goods as owner — a powerful security instrument, particularly in bankruptcy situations. If the purchaser resells the goods before full payment, a third party merely acquires the same conditional right (Article 3:84 paragraph 4 of the Dutch Civil Code), subject to third-party protection. We assess whether a retention of title clause has been validly and comprehensively stipulated and whether it holds up in the event of resale, accession, or creation of a new object.

Transfer and delivery in practice: advice and dispute resolution

Property law issues regarding transfer and delivery affect both the boardroom of a listed company and the day-to-day trading practice of SMEs. Our mixed teams of lawyers and in-house counsel provide guidance on, among other things:

• drafting and reviewing delivery and retention of title clauses in general terms and conditions;
• the transfer of claims via assignment, for example in factoring or company acquisitions;
• disputes regarding the question of whether ownership has been validly transferred, including revendication and third-party protection;
• complex transactions involving real estate and other registered assets.

Whether you want certainty regarding a delivery or need to settle a conflict — we combine legal depth with practical effectiveness.

Frequently asked questions about transfer and delivery

When does ownership of a purchased item transfer?
Not upon the conclusion of the purchase agreement, but only upon valid delivery by a transferor authorized to dispose of the item pursuant to a valid title (Article 3:84 of the Dutch Civil Code). Until that moment, the seller remains the owner.

What is the difference between title and delivery?
Title is the legal basis (such as a sales agreement), while delivery is the statutory act by which the property is transferred. In the Dutch causal system, both are necessary.

Can I acquire ownership from someone who is not the owner?
Sometimes you can. With regard to movable property, Article 3:86 of the Dutch Civil Code protects the buyer who acquires in good faith and against payment. If you have doubts about the seller's authority, seek legal advice.

How strong is a retention of title clause?
Provided it is validly stipulated, it is a strong security right: in the event of non-payment, the supplier can reclaim the goods, even in the event of bankruptcy. The wording and scope of the clause are decisive.

Part of our property law

Transfer and delivery form the heart of property law and are closely linked to other topics within our Property Law, such as possession and ownership, registered property , and pledge and mortgage rights. From international corporations to the baker on the corner: our team of lawyers and (corporate) legal counsel is ready to make your transfer legally watertight. Please feel free to contact us.