Goods can be delivered constitute posessorio: the transferor is still in control of the goods though no longer as possessor, merely as holder(detenteur). Under the old Civil Code giving notice to the debtor of the assigned claim was not a conditio sine qua non for assignment.0 Not informing the debtor, however, resulted in the protection of the debtor paying bona fide to the assignor and not the assignee The ownership of the creditor/transferor for security purposes was not, however, complete. If the debtor did not pay his debts, the rules on pledge applied as far as possible to any forced sale of the goods or claims. The transferor was not able to invoke his ownership rights against certain privileged creditors. 2 Parallel to this use of ownership for security purposes, old Dutch property law allowed the broad retention of title clauses. 3 Clearly, the underlying policy was that ownership, whether transferred or retained, could be used for security purposes. This created an atmosphere in which a limited form of ownership fragmentation became accepted The debtor/transferee for security purposes could be seen as economic owner the cred itor/transferor was the formal owner. In the case of retention of title, the seller/owner was the formal owner, the buyer/holder'of the goods sold and delivered was the economic owner,, especially if he was allowed to dispose of the goods in the ord inary course of business. 4 This all changed when the new Civil Code entered into force, resulting in a fundamental policy change. 5 In Book 3, Article 84(3)of the new NCC it is stated A juridical act which is intended to transfer property for purposes of security or which does not have the purpose of bringing the property into the patrimony of the acquirer, aftertransfer, does not constitute valid title for transfer of that property With regard to the assignment of claims, Book 3, Article 94 now provides In cases other than those provided for in the preceding article [ viz. rights payable to bearer or to order the instrument of which is under the control of the transferee, JvE, rights to be exercised against one or more specifically determ ined persons are delivered by means of a deed intended for that purpose and This is different under the new NcC. See the text a bove Hoge Raad, 3 January 1941, Nederlandse Jurisprudentie 1941, 470(Boerenleenbank Hazerswoude v Los). This decision was reaffirmed in Hoge Raad, 19 May 1995, Nederlandse Jurisprudentie 1996, 119 (Keereweer q q v Sogelease). Cf. Asser-Mijnssen, Zakenrecht 3-//(Zwolle: W.EJ. Tjeenk Willink, 1986),nos 185 ff. see also Asser-Mijnssen-De Haan, Goederenrecht 3-1(Deventer. W.E.J. Tjeenk Willink, 2001),nos 468 ff. Older editions of the Asser series(a series of leading manua ls concerning Dutch patrimonial law)are still important for their analysis of old Dutch civil law See Asser-Mijnssen, Zakenrecht 3-l, nos. 179f Cf. Asser-Mijnssen-De Haan, Goederenrecht 3-1, no 222 especau see Asser-Miynssen-De Haan, Zakenrecht 3-1(Zwolle: W.E. J. Tjeenk Willink, 1992), nos 538 ff. lly no 544, Asser-Minssen-De Haan, Goederenrecht 3-1, nos. 483 ff For a brief overview of Dutch law, see J H M. van Erp and L P.w. van Vliet, Realand Personal Security, in: E. Hondius and C Joustra(eds ) Netherlands Reports to the Sixteenth International Congress of Comparative Law, Brisbane 2002(Antwerpen: Intersentia, 2002), pp. 1 15 ff, also available electronically in vol 6.4ElecTronIcJouRnalOfCompaRativELaw,(deceMber2002),<http://www.eicl.org/64 html 44 Goods can be delivered constituto posessorio: the transferor is still in control of the goods, though no longer as possessor, merely as ‘holder’ (détenteur). Under the old Civil Code, giving notice to the debtor of the assigned claim was not a conditio sine qua non for assignment.10 Not informing the debtor, however, resulted in the protection of the debtor paying bona fide to the assignor and not the assignee. The ownership of the creditor/transferor for security purposes was not, however, complete. If the debtor did not pay his debts, the rules on pledge applied as far as possible to any forced sale of the goods or claims.11 The transferor was not able to invoke his ownership rights against certain privileged creditors.12 Parallel to this use of ownership for security purposes, old Dutch property law allowed the broad retention of title clauses.13 Clearly, the underlying policy was that ownership, whether transferred or retained, could be used for security purposes. This created an atmosphere in which a limited form of ownership fragmentation became accepted. The debtor/transferee for security purposes could be seen as ‘economic owner’, the creditor/transferor was the formal owner. In the case of retention of title, the seller/owner was the formal owner, the buyer/‘holder’ of the goods sold and delivered was the ‘economic owner’, especially if he was allowed to dispose of the goods in the ordinary course of business.14 This all changed when the new Civil Code entered into force, resulting in a fundamental policy change.15 In Book 3, Article 84(3) of the new NCC it is stated: A juridical act which is intended to transfer property for purposes of security or which does not have the purpose of bringing the property into the patrimony of the acquirer, after transfer, does not constitute valid title for transfer of that property. With regard to the assignment of claims, Book 3, Article 94 now provides: In cases other than those provided for in the preceding article [viz. rights payable to bearer or to order, the instrument of which is under the control of the transferee, JvE], rights to be exercised against one or more specifically determined persons are delivered by means of a deed intended for that purpose and 10 This is different under the new NCC. See the text above. 11 Hoge Raad, 3 January 1941, Nederlandse Jurisprudentie 1941, 470 (Boerenleenbank Hazerswoude v Los). This decision was reaffirmed in Hoge Raad, 19 May 1995, Nederlandse Jurisprudentie 1996, 119 (Keereweer q.q. v Sogelease). Cf. Asser-Mijnssen, Zakenrecht 3-III (Zwolle: W.E.J. Tjeenk Willink, 1986), nos. 185 ff.; see also Asser-Mijnssen-De Haan, Goederenrecht 3-I (Deventer: W.E.J. Tjeenk Willink, 2001), nos. 468 ff. Older editions of the Asser series (a series of leading manuals concerning Dutch p atrimonial law) are still important for their analysis of old Dutch civil law. 12 See Asser-Mijnssen, Zakenrecht 3-III, nos. 179 f. 13 Cf. Asser-Mijnssen-De Haan, Goederenrecht 3-I, no. 222. 14 See Asser-Mijnssen-De Haan, Zakenrecht 3-I (Zwolle: W.E.J. Tjeenk Willink, 1992), nos. 538 ff., especially no. 544; Asser-Mijnssen-De Haan, Goederenrecht 3-I, nos. 483 ff. 15 For a brief overview of Dutch law, see J.H.M. van Erp and L.P.W. van Vliet, Real and Personal Security, in: E. Hondius and C. Joustra (eds.), Netherlands Reports to the Sixteenth International Congress of Comparative Law, Brisbane 2002 (Antwerpen: Intersentia, 2002), pp. 115 ff., also available electronically in vol. 6.4 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (December 2002), <http://www.ejcl.org/64/art64- 7.html>