A Study on the Passage of Ownership in the International Sale of Goods and the Bill of Lading

Abstract

This article describes and analyzes the basic principle and its substantive rules on the transfer of property under English law in comparison with those under the Korean law. It extends the comparative study into the investigation of the central role played by the bill of lading to pass the property in terms of the manner in which the bill of lading is issued and the way in which it is transferred to the buyer. In addition, this article compares the rules of one jurisdiction with those of other jurisdictions and to evaluate them in light of the discipline of comparative law. It shows that the principle of delivery and consent under Korean law is superior in that it provides solutions to several problems English law may have which can be directly derived from the principle of delivery and consent. This is, particularly, because the principle of publicity as the underlying idea of the principle of delivery and consent requires delivery for the transfer of property to be visible for everyone and consequently property rights to be effective against everyone. In addition, this article argues that the position in Korean law which does not provide the same protection awarded to the buyer who acquires property by the transfer of the bill of lading as that awarded to the buyer who acquires property by physical delivery is regrettable. This is because the bills of lading as one of negotiable instruments are put in everyday use for business people not only to deliver the goods but also to transfer property in international sale of goods.