Principle of absoluteness

Absolute principle is a principle in property law , according to which real rights as absolute rights are directed against everyone (absolute), must be observed by everyone and therefore protect against everyone.

General

The principle of absoluteness stands at the beginning of the five principles governing property law ( PASTA after the first letter; in addition to this, the principle of publicity , specialty , compulsory type and the principle of abstraction ). Absolute rights are control rights with the help of which a certain thing can be influenced and / or outside influence can be excluded. Because of this far-reaching effect and for reasons of legal certainty and legal clarity, it is necessary to restrict the validity of the principle of absoluteness by the four other, opposing principles of property law. Absolute rights work against everyone ("erga omnes"), so that the holder of such a right has a defense against anyone who violates this right.

Principle of absoluteness for individual rights

A distinction must be made here between property and limited real rights .

property

This comprehensive legal protection is most perfect with property. This also applies to personal rights and copyrights that do not belong to property law . Property as a right in rem has an effect on everyone. According to Section 985 of the German Civil Code, the owner can demand the return of the item from anyone who possesses it without authorization. In addition, he has a claim for damages in the case of lis pendens according to § § 990 , § 989 BGB and a claim for compensation according to § § 994 ff. BGB. If his property is impaired, the owner has a right to removal and injunctive relief according to § 1004 BGB. In the same way, he can demand compensation from anyone who damages the item in accordance with Section 823 (1) BGB.

Restricts real rights

This comprehensive legal protection also applies to the holders of limited rights in rem. The limited real rights are encumbrances on property due to obligations to tolerate or rights of use or exploitation and, in this respect, have an effect on property. The comprehensive legal protection for the limited real rights therefore extends as far as they are in need of protection according to the respective legal content (for example, § 1227 BGB refers to the property right).

Law of obligations

Real rights work towards everyone. This is different from the law of obligations , where a contractual relationship (relatively) only arises between certain persons (e.g. the debtor and the creditor of a debt relationship ). The creditor of a debt relationship can only demand performance from one person, namely the debtor (for example, the seller pays the purchase price from the buyer in accordance with Section 433 (2) BGB).

Individual evidence

↑ Hans Hermann Seiler : Past and present in civil law , Heymanns, Cologne 2005, ISBN = 978-3-452-25387-3, p. 250.
↑ Julius von Staudinger, Eckpfeiler des Zivilrechts , 2005, p. 888
^ 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, § 3 I 1.
^ Fritz Baur , Rolf Stürner , Textbook of Property Law , 2009, § 4 Rn. 3.

[1] Hans Hermann Seiler : Past and present in civil law , Heymanns, Cologne 2005, ISBN = 978-3-452-25387-3, p. 250.

[2] Julius von Staudinger, Eckpfeiler des Zivilrechts , 2005, p. 888

[3] 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, § 3 I 1.

[4] Fritz Baur , Rolf Stürner , Textbook of Property Law , 2009, § 4 Rn. 3.