Waterkampioen watersport magazine

Power of disposition, to buy or not to buy?

THE QUESTION:
“I have been looking for a certain type of sloop for some time and have now seen one on Marktplaats. However, it was for sale at an insanely low price. A stroke of luck, I thought at first. But then I wondered whether this was pure coffee. What if it turns out to be a stolen boat? Would I lose both my money and the boat?

The law requires for a legally valid transfer, among other things, a so-called power of disposition of the seller. In short this means that the seller must be authorised to perform legal acts with regard to what he is selling, in this case the boat. So he must be the owner. If not, you are wrong.

The law has a provision that protects the third party (you as buyer) under certain circumstances against such a disposition of the seller. The idea behind this is that a party with a right, the rightful owner of the boat, can always exercise his right of ownership, but that this could be unreasonable towards the person (the buyer) who was not aware of the existence of that right. That buyer can then invoke so-called third party protection.

The condition for this protection is that, despite the seller’s lack of authority, there was a valid title and delivery. In addition, it must involve the transfer of a movable item (non-registered property) and it must not have been a gift. In addition, the third party (i.e. the buyer) must have acted in good faith. This is the case if the third party did not know and should not have known of the disqualification of the transferor.

“Good faith is the crux here”.

Self-examination.
So being in good faith is the crux. The law states that you are not in good faith if you do not know the facts or the right to which your “good faith” relates, but given the circumstances should have known. This last criterion means that a certain degree of self-examination can be required of everyone. This duty of investigation depends on the circumstances surrounding the purchase. If you have good reason to doubt, you are also regarded as someone who should have known the facts or the law. So if you buy a sailing boat from a drunk at the Sneekweek around midnight, you can be sure that, if you are caught, you will not only lose your money (and boat), but also run a great risk of being charged with handling stolen goods. The parallel with the stolen bicycle is obvious. So you also have to be alert with the Marktplaats ad, for example because of the (too) attractive price. In short: if you could have known better, you have no (third party) protection against the original owner and you have to return the boat to that person. This of course only if he can prove his right (ownership) beyond any doubt.

You also have a so-called duty to refer. If requested, you must, within three years of your purchase, provide information about the person from whom you bought the property so that he can be traced. The rationale behind this is that the original right holder then knows who he may approach. If you do not meet these criteria, you are not entitled to third party protection and must return the vessel. Moreover, you can be charged with receiving stolen goods. You risk a hefty fine, community service or even a year in prison.

Reclaiming.
The law states that if the owner of the boat has lost his property as a result of theft, he can, for three years after the theft, claim the boat back as his property from anyone. Whether he actually gets it back depends on the buyer’s third party protection. For example, when you buy a boat from a company, a broker or a shipyard in a designated business premises, you remain the owner even if the boat turns out to be stolen later. The idea behind this is that you should not expect stolen goods in the regular trade.

Conclusion.
Inform, especially when in doubt, always carefully how the seller got the ship and ask in any case for ownership papers and his identification. When in doubt: do not buy.

More information or download old articles:  https://www.anwb.nl/kampioen/algemeen/digitaal-archief

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