Market Overt in the Sale of Goods: Israeli Law in a Comparative Perspective

Abstract

Market overt deals with the conflict between thebona fidepurchaser of a chattel and the person whose rights in the property are injured by the sale. Schematically there are three people involved in this situation: the original owner, the seller and the purchaser. The most simple illustration is the case in which A steals goods belonging to B and sells them to C, who does not know of their origin. On the common assumption that A disappears or is insolvent (and even on the assumption that his whereabouts are known and it is possible to file a claim against him) the question arises, who is entitled to the goods, B or C, and who must bear the loss. In the absence of special circumstances, one is unable to say which of the two has a more “just” claim to title — both have an absolutely valid claim. The layman and the legalist are confounded by this situation, and are without even a clear intuition of whom to favour.The large variety of solutions to this dilemma offered by different legal systems is testimony to this conundrum. As in other questions, the Israeli legislature did not adopt a solution drafted by any particular foreign system, but drafted an original and independent rule. Elements of this rule are similar to the constituent elements in comparative rules in other systems, but the compilation of all these constituents is unique and different from all other rules.