Commentary to article 235. Grounds for acquiring ownership rights The Civil Code of the Republic of Kazakhstan
According to paragraph 1 of the commented article, a new thing should be understood as a newly manufactured or created thing, therefore, no one has owned this thing yet, and it arises for the first time. A person (natural or legal) who has re-manufactured or created an item becomes its owner. However, legislation or a contract may provide that the owner of a newly manufactured item becomes the person who placed the order for this item. Such a contract may be a contract of employment or a contract for the purchase and sale of a future item.
117 of the Civil Code of the Russian Federation, things can be movable and immovable, so the article in question is about things of both kinds, but the regime for acquiring ownership of them is different. 118 of the Civil Code, immovable things are subject to state registration, and only after that, a person acquires ownership rights to immovable newly manufactured or created things.
123 of the Civil Code, the person using the item acquires ownership of the fruits, products and income from its use, unless otherwise provided by law or contract. For example, in the case of vindication, the bona fide owner of a thing is obliged to transfer all income to its owner from the moment he learned about the illegality of his possession (see comment to art. 263 of the Civil Code).
Ownership of an item from the owner to another person may be transferred either under an agreement stipulated by the Civil Code or under any other agreement. Such a contract is subject to the general rules of the Civil Code on the form and other provisions that determine the validity of transactions.
Specifically to ensure guarantees of ownership rights, the commented article provides that the compulsory termination of ownership rights is possible only on the grounds established by the Civil Code. These cases are provided for in Articles 251-256 of the Civil Code.
The commented article formulates an exception to the general rule, according to which ownership of property can be acquired either against the will of the owner, or his will to alienate property is not taken into account, that is, its absence has no legal significance. Such grounds are defined by Articles 250-256 of the Civil Code in relation to property rights.
Paragraph 4 of the commented article clearly defines that ownership of the property of members of a consumer cooperative established for the construction of various types of premises, after fully paying a share for the corresponding premises, is acquired by persons who, up to that point, exercised ownership and use rights in relation to the premises. According to Articles 2 and 3 of the Decree on State Registration of Rights to Immovable Property and Transactions with It, ownership of these premises is acquired from the moment of state registration.
Article 236. The emergence of ownership rights to newly created real estate
The provisions of this article are a specification of clause 1 of Article 235 of the Civil Code, which establishes a general rule for acquiring ownership of a newly manufactured or created thing, which can be both movable and immovable. This rule applies unless otherwise stipulated by the contract or legislation.
In a precise sense, in accordance with civil law (see the commentary to Article 118 of the Civil Code, as well as Articles 2 and 3 of the Decree on State Registration of Rights to Immovable Property and Transactions with it), paragraphs 1 and 2 of this article have no legal significance, since ownership of newly created immovable property always arises from the moment state registration. Therefore, construction-in-progress facilities, as well as immovable property that has not passed state registration, are considered as building materials, and ownership of these materials belongs to their owner.
Article 237. Recycling
The commented article regulates such a method of acquiring ownership of a newly manufactured movable thing as recycling or specification, and also establishes a general rule for acquiring ownership of a new movable thing made by a person through the processing of materials not belonging to him, if there is a contract between this person and the owner of the materials.
Paragraph 1 also establishes three conditions under which the processor (specifier) can become the owner of a new item in the absence of an agreement between him and the owner of the material.: the processor acted in good faith, i.e., before the end of processing, he did not know and should not have known that he was using someone else's material; the cost of processing significantly exceeds the cost of materials; the specifier carried out the processing not for commercial purposes, but for himself.
In both cases, obligations arise between the owner and the processor to compensate for the cost of recycling or the cost of used foreign materials. Only in case of unfair actions of the specifier, the owner of the materials has the right to demand the transfer of the new thing to his ownership and compensation for the losses caused to him.
Article 238. The moment of the acquirer's right of ownership under the contract
The most important of the derivatives, and in general of all methods, is the acquisition of ownership rights under an agreement, most often purchase and sale, contract, property lease with subsequent purchase, loan and others. Given that these contracts legally mediate the main part of the transfer of ownership in economic turnover, it is important to accurately determine the moment from which ownership is transferred to the acquirer of the property under the contract.
There are two systems of transfer of ownership: one, called the agreement system, when ownership passes to the acquirer at the time of the conclusion of the contract, and the other, which adheres to the Civil Code and is called the transfer system, when ownership of the acquirer's property under the contract arises from the moment the thing is transferred.
The norm of the commented article is dispositive, that is, the transfer of ownership of a thing may not coincide with the moment of its transfer, since another moment may be provided for by legislative acts or a contract. If the application of this rule does not cause difficulties with respect to individually defined things, then this provision can be applied to things defined by generic characteristics only after their individualization, that is, isolation from the mass of things of the same kind. The methods of individualization can be different: labeling the goods, placing them in a special warehouse, sealing the room in which the items are located, etc. If individualization has not been performed, then ownership of generic items always arises at the time of their transfer.
Paragraph 2 of the commented article links the transfer of ownership not with the moment of transfer of the thing, but with the moment of registration or notarization of the contract on the alienation of property. The Decree on state registration of rights to immovable property and transactions with it, in accordance with Article 118 of the Civil Code, establishes state registration of immovable property, which does not mean registration of the contract, but state registration of ownership rights with the acquirer of the thing. The contract is only a document of title (subparagraph 2) of paragraph 2 of Article 14 of the Decree). State registration of other things equated to immovable property is also possible (see the commentary to art.117 of the Civil Code).
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The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.
Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.
Deputy head Professor Basin Yu.G.
