Defension obligation
As Defension duty ( defensor absendis ) designating Romanist jurisprudence a specific type of warranty of title . In this case, a seller had to defend the acquirer's rights against a third party providing evidence in the event of a lawsuit. The obligation to defend was a legal custom until the Middle Ages .
Roman law
The procedure ( legis actio sacramento in rem ) was founded in Roman law and originally served the legal protection of property ( the rei vindicatio ) of a stolen person. With it he was able to hand over his thing from the last owner for theft ( furtum nec manifestum ). The defendant, who could have obtained the thing in good faith from a third party, was granted the right to prove his legal acquisition through mancipatio in order to dispel suspicion of theft. In order to be allowed to remain in possession of the thing, he had to name the previous owner ( auctor ) as proof , who in turn had to prove legal previous ownership . The previous owner was liable to the defendant at double the purchase price of the thing, unless he was able to conclusively prove his rightful possession or his acquisition from the previous owner, to whom he could shift the burden of proof.
This later extended warranty obligation of the seller, which included the guaranteed exclusion of existing third party rights to the object of purchase, put the buyer in a stronger legal position.
literature
- Max Kaser : Roman private law. 2nd Edition. CH Beck, Munich / Würzburg 1971, ISBN 3-406-01406-2 , §§ 32, 33.
Individual evidence
- ^ Charles Verlinden , Eberhard Schmitt (ed.): The medieval origins of European expansion . Otto Harrassowitz Verlag, 1986, ISBN 3-406-30372-2 , p. 184.