Examples of using Nemo dat in English and their translations into Russian
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Official
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Colloquial
As already mentioned,the Guide does not interfere with the application of the nemo dat principle.
In this case, as a result of the nemo dat principle, the secured creditor will have no security right in the intellectual property at all.
It was noted that the commentary could explain the relationship between the nemo dat principle and priority rules of the Annex.
Under the nemo dat principle, a licensee of intellectual property only takes the actual right transferred subject to all prior transfers, including security rights.
However, this ignores the basic legal principle nemo dat quod non habet, meaning that one cannot give what one does not have.
In addition, the priority ranking of the acquisition financier may have to be determined according to basic principles of property law nemo dat quod non habet.
The reason is very simple and clear;it is to be found in the old Roman principle of nemo dat qui non habet, which means that one cannot give what one does not have.
Moreover, the chapter on creation of a security right made it clear that a security right could not provide a secured creditor with more rights than the grantor enjoyed nemo dat quod non habet.
Future work would need to clarify the application of the nemo dat principle to intellectual property, namely that a creditor obtaining a security right in intellectual property or rights to use intellectual property does not obtain any rights more than the rights that the grantor has in that intellectual property.
In this situation, a licence granted by the original owner would be an unauthorized licence under law relating to intellectual property andthe licensee would obtain nothing based on the nemo dat principle.
If this transfer takes place before a security right was made effective against third parties, both under the law recommended in the Guide(see recommendation 13) andlaw relating to intellectual property(nemo dat), the transferee of encumbered intellectual property will take the encumbered intellectual property free of the security right.
The text could also deal with transfers and incorporate generally applicable rules such as, for example,that a transfer should be authorized and permitted under intellectual property law or the nemo dat rule.
With respect to paragraph 96,it was suggested that the reference to statutory prohibitions resulting from the application of the nemo dat principle(i.e. that one cannot give more rights than oneself has) was unnecessary because it applied to all types of asset by virtue of the application of general property law principles.
In addressing these issues, most States start from the principle that the grantor cannot grant to the secured creditor more rights than the grantor has ormay acquire in the future nemo dat quod non habet.
It was agreed that:(a) the last two sentences of paragraph 39 should be revised so as not to describe the nemo dat principle as a statutory prohibition;(b) paragraph 40 should be revised to clarify how the concepts of"improvements" or"adaptations" related to limitations to the use of future intellectual property as security for credit.
Ii If the security right was created after the conclusion of the licence agreement,the secured creditor would have no greater rights than the grantor(in accordance with the nemo dat principle; see also recommendation 13); and.
Another example is the requirement that the grantor must have rights in the encumbered asset(the principle that no one can give what he orshe does not have nemo dat quod non habet or nemo plus juris transferre potest quam ipse habet), which has particular importance with respect to security rights by licensees see A/CN.9/631, recommendation 13.
Yet another example mentioned related to the fact that the Guide deferred to general property law principles,such as the principle that nobody could grant to another person more rights than he or she had nemo dat quod non habet.
In that connection, it was stated that if an"alleged infringer" had a legitimate claim,the issue would be the rights of the grantor of the security right and the nemo dat principle, as, if the alleged infringer was a legitimate claimant, the grantor might not have had rights to encumber at the time of the creation of the security right.
The Security Council does not have that power under the Charter, and, while it can set up subsidiary bodies, it cannot give them powers that itdoes not have itself: the established legal principle of nemo dat quod non habet.
Whether secured creditor SC2 takes its security right in the patent from transferee B subject to the security right of SC1 will also be determined in accordance with the lex protectionis normally, under the nemo dat principle, SC2 will acquire no more rights than B had.
It was agreed that paragraph 2 should be revised to:(a) refer to language along the lines"the grant of exclusive rights, in particular in the case of patents and trademarks" rather than"to notion of title and basic effectiveness"; and(b) elaborate on the notion of priority under law relating to intellectual property, for example,by explaining that a conflict between two secured creditors might not be a priority conflict because of the application of the nemo dat rule.
Accordingly, the law recommended in the Guide would not apply and this matter would be left to law relating to intellectual property,which would typically resolve it by reference to the nemo dat principle and principles about good faith acquisition of assets.
The reason for this result is that the licensee would have taken its rights under the licence agreement subject to the security right created by the owner(see recommendation 79) andthe licensee could not have given to its secured creditor more rights than the licensee had based on the nemo dat principle.
The Tribunal thus forgot the very important legal principle-- my Latin is not perhaps as good as that of my colleague from the United Kingdom, who is sitting opposite me-- but the legal principle is,if I remember correctly, nemo dat quod non habet, which means that one cannot give what one does not have.
It was widely felt that, as a result of that principle, the secured creditor could acquire no greater rights in the encumbered asset than the grantor had, whether the encumbered asset was a tangible asset, a receivable orintellectual property referred to as the"nemo dat principle.
Accordingly, where a secured creditor took a security right in an encumbered asset from a buyer of the asset, it took the asset subject to the security right granted in it by the seller,in accordance with the nemo dat quod non habet principle.
Finally, as is the case with assets other than intellectual property, an asset may not be encumbered by a person if that person does not have rights in the asset orthe power to encumber it see recommendation 13 and the nemo dat(quod non habet) principle.
With respect to paragraph 43, it was suggested that it should be revised to align the references to the meaning of the term"priority" with its explanation in the terminology section of the Guide and to clarify that aconflict between two parties, neither of whom was a secured creditor, was outside the scope of the Guide, irrespective of the nemo dat rule nobody gives rights that they do not have.
Should the owner have licensed its intellectual property to a licensee that acquired its rights under the licence agreement free of the rights of the enforcing secured creditor,when the secured creditor acquires the intellectual property from the grantor, it acquires that right subject to the prior-ranking licence in accordance with the nemo dat principle.
