Handover (property law)
The physical surrender is a real act which gives the new owner actual control over the thing and is accompanied by the willingness of the transferor to transfer ownership and the new owner's will to establish ownership. The physical transfer is therefore not a legal transaction , so that a representation is not possible and legal capacity is not required. This applies to both the handover and the acceptor. Real acts therefore also lead to legal consequences that occur by virtue of the law.
In jurisprudence, handover can take two forms. On the one hand, as an obligation of a corresponding contractual or real claim . On the other hand, as a prerequisite for the effectiveness of certain orders .
Handover as a duty
If someone is obliged to hand over something, he owes the granting of immediate possession . Such an obligation often results from a contract under the law of obligations . For example, if the seller undertakes in a sales contract not only to transfer the purchased item to the buyer, but also to hand it over (cf. BGB). Or the landlord undertakes in a rental agreement to hand over the rented property to the lessee in a condition suitable for use in accordance with the contract so that he can use the property (cf. Paragraph 1 BGB).
Handover as a prerequisite for the effectiveness of certain dispositions
The handover is a prerequisite for the validity of a number of dispositions. This applies due to the principle of publicity , according to which the legal situation in rem must be recognizable to everyone at all times and externally, especially for the transfer or ordering of rights in rem to movable objects (e.g. for the transfer of ownership , or the appointment or transfer of a lien ).
Transfer of movable property
The effective transfer of ownership of a movable item presupposes, in addition to the agreement between the seller and the buyer on the transfer of ownership , the transfer of the item to be transferred (cf. ). As an act of publicity, the transfer in the context of the transfer of ownership not only requires that the purchaser of the property is granted some form of possession , but also that the seller relinquishes any form of possession.
Transfer of ownership with handover
The rule is the handover of an item by granting direct ownership from the previous owner to the new owner ( traditional principle ; cf. sentence 1 BGB).
Transfer without handover
As an exception, a handover can be waived if the purchaser is already in possession of the item - be it lawfully or through prohibited personal authority . It is a special form of transfer, the so-called traditio brevi manu (cf. sentence 2 BGB).
In exceptional cases, a handover can also be waived if it is replaced by one of the legally provided handover surrogates (also called handover substitutes). Then either the seller or a third party should remain the direct owner of the thing. The transfer surrogate is also deemed to be surrender if the seller has no property and instructs the immediate owner to procure direct property to the purchaser and the immediate owner does so (so-called bidding ).
Transfer surrogates are those
- Agreement of a constitution of possession ( ) if the seller remains the direct owner of the thing and the purchaser is to acquire indirect ownership or
- Assignment of the right to surrender ( ) if a third party is to remain the immediate owner and the purchaser is to become an indirect owner.
The handover of things ensures the necessary publicity in property law and creates the - refutable - legal certificate for third parties that the owner of a thing is also its owner ( (1) BGB). However, this does not apply if the item has been stolen , lost or otherwise lost from the previous owner (Section 1006, Paragraph 1, Clause 2 BGB). There are three exceptions to this, because money , bearer papers and items acquired at public auctions can be acquired in good faith at any time ( (2) BGB). In the case of transfer surrogates, this principle of publicity is broken because the immediate owner is not the owner of the goods.
Transfer of securities
The handover plays for the transfer of rights from those in securities securitized property rights a crucial role. The rights from bearer papers ( bearer checks , bearer shares , bearer bonds ) are transferred to the purchaser by agreement and handover of the bearer paper. In the case of order papers (order check, bills of exchange , interim receipts and registered shares as "born" order papers; (transport) insurance policy , loading slip , (order) warehouse slip , commercial commitment form, commercial instructions and bill of lading as "approved" order papers), there is also an endorsement on the order paper required for its legal transfer. Registered papers ( savings book , insurance certificate and mortgage , land charge and pension certificate ) require not only agreement and handover, but also an assignment of the claim documented therein, because "the right to paper follows the law from paper". In the case of registered papers, the transfer only has a declaratory effect, the actual transfer of rights (constitutive effect) takes place through the assignment.
Transfer of land and other real estate
Even if German law does not make a fundamental legal distinction between real estate and Fahrnis , the transfer of ownership of a piece of land or real estate does not take place through handover, but through conveyance ( BGB) and entry in the land register ( BGB).
- Harm Peter Westermann, Dieter Eickmann, Karl-Heinz Gursky: Sachrecht , 2011, p. 112.