Property servant

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In jurisprudence, a servant is understood to be a person who actually exercises control over a thing for someone else and is bound by his instructions . In German property law it is regulated in § 855 BGB .

Wording of the law

§ 855 BGB reads:

If someone exercises actual power over a thing for another in his household or business or in a similar relationship, by virtue of which he has to obey the other's instructions relating to the thing, then only the other owner is.

Characteristics of a property servant

The law defined in § 854 BGB the possession than the actual control over a thing. This physical control can be exercised both personally and with the help of third parties. The latter is possible with the help of property brokers and property servants. The property broker owns a thing for another, called the indirect owner. Tenants and tenants are, for example, property brokers ; they exercise ownership of the rented or leased thing for its owner .

A servant does the same. He differs from a property agent by his position in relation to the person for whom he exercises the property. This person is often referred to as the owner of the property. In relation to this, a servant is bound by instructions. Such a bond with instructions exists if the servant is not able to exclude the owner from dealing with his thing. The law specifies the household and the commercial business as relationships in which this type of obligation is typically present. From these examples, jurisprudence concludes that property servants are intended for social dependency relationships.

In contrast to a property broker, a property servant exercises ownership of a thing exclusively for his owner and thus helps him as his extended arm to direct possession. It is controversial in jurisprudence whether the property servants must be externally recognizable. While the case law affirms this, most research does not consider this to be necessary. For example, case law has recognized the employee as a property servant with regard to work items for his employer and the buyer of a motor vehicle during a test drive for the seller.

Legal meaning of the property servant

If a servant takes control of an object within the framework of the instruction relationship, this leads to the acquisition of ownership by his owner. This loses his property when the servant's actual control over the thing ends or he is no longer bound by instructions. Loss of property also occurs when the servant expresses that he no longer wants to own property for his owner in the future.

A servant does not acquire any legal positions vis-à-vis his owner. However, he may assert his property rights against third parties: If the property servant threatens to be illegally withdrawn from the property that he owns for his owner in the form of forbidden self-power , the property servant may, if necessary, oppose this threatened deprivation according to § 860 , § 859 BGB Defend against violence. He may also defend himself against persons who disrupt the exercise of physical rule. These rights act as grounds for justifying acts that are illegal in themselves.

In jurisprudence it is controversial to what extent one can acquire from a property servant in good faith . Since a property servant does not own any property himself, a purchase in good faith can be in conflict with Section 935 (1) sentence 1 BGB. According to this, things cannot be acquired in good faith if the owner has lost their possession involuntarily or unconsciously. With regard to the property servant, however, the law does not make a clear statement as to whether the will of the property servant or the owner of the property is to be taken into account with regard to the loss of property. According to the prevailing opinion, the will of the person for whom the possession is exercised must therefore be based on § 855 BGB. Another view treats the property servant in the context of § 935 BGB as the property broker, so the will of the property servant is decisive. This is justified by the fact that § 855 BGB only regulates questions of property protection and does not imply any statement about who bears the risk of the thing being passed on. Another view, for reasons of traffic protection, is based on whether the property servant was externally recognizable as such.

See also

Wiktionary: property servant  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Hans Schulte-Nölke: § 935 , Rn. 4. In: Reiner Schulze, Heinrich Dörner, Ina Ebert, Thomas Hoeren, Rainer Kemper, Ingo Saenger, Klaus Schreiber, Hans Schulte-Nölke, Ansgar Staudinger (eds.): Bürgerliches Gesetzbuch: Handkommentar . 8th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-1054-6 .
  2. ^ Fritz Baur, Jürgen Baur, Rolf Stürner: Property Law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 52, Rn. 39.
  3. ↑ Detlev Joost: § 855 , Rn. 3-5. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 .
  4. ↑ Thomas Hoeren : § 855 , Rn. 2-6. In: Alfred Keukenschrijver, Gerhard Ring, Herbert Grziwotz (eds.): Nomos Commentary BGB: Property Law . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1103-1 .
  5. ↑ BGH, judgment of May 30, 1958, Az. V ZR 295/56, full text = BGHZ 27, 360 (363).
  6. ↑ Thomas Hoeren: § 855 , Rn. 11. In: Alfred Keukenschrijver, Gerhard Ring, Herbert Grziwotz (eds.): Nomos Commentary BGB: Property Law . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1103-1 .
  7. ↑ Detlev Joost: § 855 , Rn. 10. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 .
  8. ↑ BGH, judgment of January 30, 2015, Az. V ZR 63/13, full text = NJW 2015, 1678 f.
  9. ↑ OLG Cologne , decision of April 18, 2005, Az. 19 U 10/05, full text = NZfV 2006, 260.
  10. ↑ BGH, judgment of November 27, 1952, Az. IV ZR 178/52, full text = BGHZ 8, 130 (132).
  11. ↑ Thomas Hoeren: § 855 , Rn. 18. In: Alfred Keukenschrijver, Gerhard Ring, Herbert Grziwotz (eds.): Nomos Commentary BGB: Property Law . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1103-1 .
  12. ↑ Jürgen Oechsler: § 935 , Rn. 10. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 .
  13. ↑ Jörg Neuner: Protection of honesty when things get lost , JA 2007, 401 (404).
  14. ^ Hans Josef Wieling: Property Law . 2nd Edition. tape 1 : Property, possession and rights to movable property . Springer, Berlin 2006, ISBN 3-540-29869-X , p. 405 .