Abstraction principle

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The abstraction principle states that the compulsory commitment business (z. B. purchase contract), and then or simultaneously executed rem available business (z. B. conveyance of the purchased item to conclude a purchase contract) segregated by law be considered (separation principle). The abstraction principle is subject to the doctrine of legal transactions and is one of the elementary principles in German civil law .

It was developed by Friedrich Carl von Savigny in the 19th century on the basis of a quote from the classical Roman lawyer P. S. Julianus . Savigny's student Bernhard Windscheid enshrined the principle in the German Civil Code (BGB), which came into force in 1900. It has its roots in property law , which is why it is mainly used there, but its meaning goes beyond that, since the independence of the dispositions from a legal reason ( causa ) is a general principle of the BGB.

Basis: The separation principle

Separation principle

The abstraction principle is based on the principle of separation of contractual legal causal business from property law embossed abstract business . The legal positions of the two types of business are independent of each other.

Example to explain this principle:

Müller buys a car from Friedrich. He pays the same day. However, he does not receive the car and the papers until a week later.

German private law separates three processes (or legal transactions) here: First, Müller and Friedrich concluded a purchase agreement in accordance with Section 433 (1) BGB. This is a causal transaction ( obligation transaction ) with the content:

Müller and Friedrich agree that Müller should get the car and Friedrich the purchase price (1st process).

But has only given as Friedrich Müller the car, he has an abstract business in accordance with § 929 sentence 1 BGB, in the form of available business , the property transferred to Mueller.

Müller and Friedrich agree that Müller will get ownership of Friedrich's car (because Müller has a claim to it from the sales contract - 2nd process).

Müller, on the other hand, fulfilled his obligation by paying, i.e. transferring ownership and handing over the money immediately.

Müller and Friedrich agree that Friedrich gets ownership of Müller's money in the amount of the purchase price (because Friedrich has a claim to it from the purchase contract - 3rd process).

Development history

The abstraction principle is derived from the sources on Roman legal transactions. With regard to certain legal transactions, in ancient Rome it was planned to conduct them in the Roman Forum . From the sources it can be concluded that not only an agreement was necessary to achieve the desired legal effect, but for their performance a detached from her abstract act. The most famous archaic legal transaction of this type was the mancipatio by which, for example, the dismissal of the Son was caused by paternal authority or the release of a slave . The manipulation was also necessary to acquire Roman citizenship , a basic requirement for entry into one of the state offices. Only as a free Roman citizen could the young Roman, stepping out of the suzerainty of the family patron, build up his own existence. One way out was the regulation that after the son had been sold three times into bondage to another, the father would lose his power over the son. In order to achieve “emancipation”, the father at the forum transferred his son into the bondage of a cooperative third party, regularly a friend of the family. He immediately released the son from his service. After performing this procedure three times, the son was finally free and entitled to take on state offices. Savigny concluded that not only the emancipatory sequence of gestures was sufficient, but that it was also necessary to implement it on the forum.

However, this interpretation of the sources turns out to be incorrect. Regardless of the question of whether there was otherwise an abstraction principle in Roman legal transactions, Max Kaser proved that such procedures merely represented the fulfillment of formal requirements, as at the present time, based on existing formal requirements, declarations of intent , which are initially only made orally, again with compliance with requirements such as the written form or notarial certification must be repeated. The preceding informal declaration does not result in any obligation, but is informal and therefore ineffective. The Roman civil law - like the other European statutes based on Roman civil law such as the Code civil in France - did not know any abstraction principle.

Content of the abstraction principle

Abstraction principle

The abstraction principle states that the abstract transaction - in the example with Müller and Friedrich, i.e. transfer of ownership of the vehicle and transfer of the money - is also effective if the purchase contract as a causal transaction (obligation transaction ) is ineffective; this because both legal transactions are independent of one another in terms of their legal existence. Such a case would exist, for example, if Friedrich would have been incapable of doing business due to total drunkenness when the purchase contract was concluded ( Section 105 (2) BGB). The purchase contract would be ineffective, but Müller would still be the owner of the car if Friedrich had been legally competent again at the time of the transfer . The effectiveness of a disposition is independent of the performance claim from an obligation .

In simple terms, it can be said: The contract of obligations under sales law creates an obligation to perform, which is why it is an obligation. Because the debtor complies with his performance, the obligee is entitled to keep the object of performance. With the fulfillment, he has a “causa”, a legal reason for being allowed to keep. The disposition, however, creates neither a “causa” nor a claim. Whether the disposition takes place in fulfillment of a claim has no effect. It is also irrelevant whether the obligee may keep the object of performance. The ruling is therefore “abstract”. The legal basis of the disposition is the obligation fulfilled by the disposition.

The advantage of the abstraction principle lies in the fact that the errors leading to ineffectiveness in the disposition transaction and the obligation transaction can be assessed separately. The relatively simple disposing (in rem) contract is effective regardless of the possibly complicated mandatory (contractual) contract. This creates legally vulnerable, but initially effective conditions, to which legal transactions can orientate their actions without the need for substantial checks. If Müller acquires the property through an abstract transaction, although the underlying causal transaction (the purchase contract) is ineffective, he can still sell the car on without worry: he has finally become the owner. If Müller debt has its creditors could the car pledge to need to make without worrying about the purchase agreement.

As the abstract effective rem business in mock obligation business but no final goods assignment is to be taken, there is the need for provisions in the event that the collateral business is done without an effective binding transactions is the (legal) basis for this. The right of enrichment ( §§ 812 ff. BGB ) serves to reverse the transaction . The BGB thus provides a possibility to dissolve the transfer of ownership. In the example above, Section 812 (1) of the German Civil Code (BGB) stipulates that Friedrich can reclaim ownership of the car if the legal reason for the transfer of ownership, which exists in the purchase contract, no longer exists or did not exist from the start.

While the obligation and disposition business are barely visible in everyday traffic, but rather occur through implied action , the formal separation in the purchase and sale of real estate is clearly pronounced: the contracting parties conclude the necessary contracts by notarization in front of a notary. Here, too, the binding transaction takes place first, namely the regulation that the seller sells his property to the buyer and receives a purchase price for it. Then the contracting parties also declare the relinquishment , i.e. they conclude a second contract in which they express agreement that ownership of the property should pass from the seller to the buyer. The conveyance is a prerequisite for an application to the land registry for the registration of the new owner. As a rule, it is only submitted to the land registry once the purchase price has been paid into a private trust account (e.g. notary trust account ). Only when the land registry has made the entry in the land register has the buyer actually acquired ownership of the property and the disposal transactions are also concluded.

Legal comparison

Causal principle

The abstraction principle is a characteristic feature of the German legal system. In many other legal systems , the causal principle applies instead of the abstraction principle .

The Austrian and Swiss law separating Although binding transactions (eg. Purchase agreement ; in German law the causal business ) and available business (eg delivery;. In German law the abstract business ) as stringent, but allow neither an abstract commitment yet abstract disposition business. Rather, both must each be causal: The obligation transaction must be causal in the sense that it has a reason that makes it economical. In addition, the transaction must be causal in the sense that it is only effective if there is a valid obligation transaction , a title (principle of the causal tradition). The result is the following scheme: economic purpose - causal link → obligation transaction - causal link → disposition transaction

The French, Belgian , Luxembourg , Italian, Spanish and Portuguese law do not distinguish between causal and disposition transactions : for example, anyone who buys a car (in principle) also becomes the owner upon conclusion of the sales contract.

Corrections to the principle

In the so-called cash business of daily life, obligation and disposition business coincide. For this reason, an artificial separation is created by means of the legal second , which allows, for example, to clearly assign performance defects.

Not every contract of obligation creates actionable claims. The consequences of the abstraction principle are thereby broken. This applies, for example from the outset imperfect obligations, such as the natural obligations and various shape-cash debt contracts that take effect by meeting how the donation promise to § 518 para. 2 BGB.

Criticism of the principle of abstraction

The principle of abstraction has been criticized many times since it was first introduced in legal literature. Many authors criticize the fact that a uniform life situation is broken down into artificial parts. This is hardly understandable for legal laypeople. Uwe Wesel even criticizes that Savigny developed the principle of abstraction due to incorrect interpretation of historical sources, since no such principle of abstraction was known in Roman law. In Roman law, the validity of the transfer depends on the validity of the purchase contract. If this was ineffective, the ownership could not pass and the seller could request the purchase item back with the rei vindicatio . Furthermore, the abstraction principle leads to unreasonable results, since it adheres to the transfer of ownership even if there was no reason for this, for example the underlying sales contract is null and void. Heinrich Honsell defends Savigny by pointing out that he has rather made the “transfer” into a “tangible contract”, which is why we can only assume a new legal creation that leaves no room for a misinterpretation of the historical sources. The criticism reached a climax during the time of National Socialism , when the existing legal situation was rejected as “unvölkisch” due to its complexity and reforms were called for.

The abstraction principle has also been attacked in the context of the standardization of civil law systems within the European Union . Germany and Estonia are the only member states in which the abstraction principle applies.

In the GDR , the principle of abstraction was abolished by the civil code of the German Democratic Republic (ZGB) of June 19, 1975, which came into force on January 1, 1976. For legal transactions carried out since October 3, 1990, the abstraction principle of the BGB applies again in this area.

A look at the exercise of the law shows that neither the abstraction principle of the Civil Code nor the causal principle of the civil code, for example, brings significant advantages. The same legal problems ultimately arise. The solutions resulting from the legal constructions are different. However, there is probably no different valuation.

literature

  • Stephan Buchholz: Principle of abstraction and real estate law: on the history of the conveyance and the land charge , Klostermann, Frankfurt am Main 1978, ISBN 3-465-01289-5 , (also: dissertation at the University of Frankfurt (Main), 1977).
  • Martin Laborenz: Solutio als causa: the question of the abstraction principle in Roman law , Cologne, Weimar, Vienna, Böhlau 2014, ISBN 978-3-412-21680-1 , (also dissertation at the University of Mainz 2012).
  • Achim Lindemann: The breaches of the abstraction principle by the highest court rulings since 1900: at the same time a contribution to the interests and system-oriented use of breakthroughs , Hartung-Gorre, Konstanz 1989, ISBN 3-89191-239-0 (at the same time: dissertation at the University of Konstant 1989 ).
  • Dieter Medicus : Civil law. A presentation for exam preparation, arranged according to the requirements. Heymanns, Cologne 1968. 23rd, revised edition with Jens Petersen : Vahlen, Munich 2015, ISBN 978-3-8006-3908-3 , Rnr. 37-44, 495, 697.
  • Bruno Rodriguez-Rosado: Principle of abstraction and honest acquisition as a means of protecting legal transactions , Peter Lang, Frankfurt am Main, 2009, ISBN 978-3-631-59066-9 , (also: dissertation at the University of Cologne 2007).
  • Astrid Stadler : Freedom of design and traffic protection through abstraction: a comparative law study on the abstract and causal design of legal business benefits based on German, Swiss, Austrian, French and US American law , Mohr, Tübingen 1996, ISBN 3-16-146390-0 (also: Habilitation thesis at the University of Freiburg (Breisgau), 1993).

Web links

Individual evidence

  1. ↑ Hans Hermann Seiler : Past and present in civil law , Heymanns, Cologne 2005, ISBN = 978-3-452-25387-3, p. 256 f.
  2. ^ Harry Westermann (term): Property Law , A Textbook, continued by Harm Peter Westermann , Karl-Heinz Gursky , Dieter Eickmann, 8th edition, CF Müller, Heidelberg 2011, ISBN = 978-3-8114-7810-7, § 5 III 4.
  3. ↑ Othmar Jauernig : Principle of Separation and Principle of Abstraction , JuS 1994, 721 ff.
  4. ↑ According to recent research, the historical assumption that Savigny rightly derived the principle from Roman sources has proven to be erroneous. To Max Kaser : Roman private law I . Short textbook for legal studies. Munich 1960. From the 16th edition in 1992 continued by Rolf Knütel . 17th edition ISBN 3-406-41796-5 . 18th edition ISBN 3-406-53886-X , § 100 IV.
  5. ^ Dieter Medicus : Civil law. A presentation for exam preparation, arranged according to the requirements. Heymanns, Cologne 1968. 23rd, revised edition with Jens Petersen : Vahlen, Munich 2015, ISBN 978-3-8006-3908-3 , Rnr. 37.
  6. ↑ Uwe Wesel : Legal world studies . Frankfurt a. M. 2000, p. 93.
  7. ↑ Causal and abstraction principle in the transfer of ownership (today's diversity and its history).