53 Importance of certainty

Certainty is so important in property law that there are fewer rules which rely overtly on justice than in the other branches of the law already discussed. However, the idea of treating like alike (specifically, treating all the creditors of the transferor alike) played an important part in the debates on the question of whether ownership should as a rule pass on the conclusion of the relevant contract (e. g. a contract for the sale of goods) or only on delivery of the goods or in accordance with another system.1. Moreover the notion of good faith plays a crucial role in the rules of Book VIII which deal with the acquisition of goods. Chapter 3 deals with good faith acquisition from a person who is not the owner. The main objective of those rules is the promotion of security by favouring the status quo but they are heavily qualified by notions of justice. The acquirer will get ownership only if the acquisition was in good faith.2. The position is the same in the rules on the acquisition of ownership by continuous possession.3. Justice is also an important element in the rules on the consequences of production, combination or commingling. It is not enough to produce an answer to the question of who owns the resulting goods. The result must also be fair. Where, for example, one person acquires ownership by producing something out of material owned by another, a fair result is achieved by giving the person who loses ownership a right to payment of an amount equal to the value of the material at the moment of production, secured by a proprietary security right in the new goods.4. This prevents the taking of an undue advantage at the expense of another. The only example of consumer protection in Book VIII is the rule on the ownership of unsolicited goods sent by a business to a consumer.5. Justice lies behind many of the rules in Book IX on proprietary security and particularly the rules on priority6. and enforcement.7. In this context it means not only fairness as between the security provider and the secured creditor but also fairness between different secured creditors and indeed others having a proprietary right in the encumbered assets. The emphasis is on the protective aspect of justice and it is the security provider who often requires protection. There are provisions designed to afford particular protection to consumer security providers.8. Another aspect of justice is reflected in the rules on good faith acquisition of assets, or of security rights in assets, free from a prior security right.9.