Actio Publiciana (Austria)

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The Actio Publiciana (§ 372 ff ABGB : "Lawsuit from the legally presumed property" ) is, in addition to the property disturbance lawsuit, a property protection lawsuit in Austrian property law . It is aimed at the surrender of the thing or the omission of disturbances, whereby the plaintiff must show lawful, genuine and honest possession , i.e. qualified possession, also called " possession by presidency " .

The Actio Publiciana thus allows those who have honestly acquired an object and thus qualified or possessed it to sue it in a similar way to the owner. So it is suitable for. B. for the buyer of a property, whose acquisition of property has not yet taken place due to the previously missing entry in the land register, as well as for the buyer of a movable object who could not acquire ownership of it derivative (derived from the foreman).

Depending on the claim, there are two types of Actio Publiciana:

  • The indicator form (withdrawal) is modeled on the property lawsuit.
  • The negatorial form (disturbance) is modeled on the actio negatoria .

The Actio Publiciana thus has elements of the property lawsuit as well as elements of the property damage lawsuit . In contrast to the disruption of possession suit, the plaintiff can also take action against the withdrawer / disruptor after the 30-day period; In contrast to the property lawsuit or actio negatoria, the plaintiff has the advantage of not having to prove his property ( probatio diabolica ). Due to the latter property of the Actio Publiciana, it is also particularly suitable for the owner, as this saves the probatio diabolica.

The Actio Publiciana does not penetrate in the event of the following objections:

  • Qualified possession of the defendant: If the plaintiff and the defendant are qualified owners, i.e. presidential owners, the better qualified according to the rules of §§ 373 and 374 ABGB wins :
    • Less qualified is someone who cannot name a foreman or only one who is suspicious.
    • Less qualified is someone who has received the thing free of charge and his opponent has received it against payment.
    • If the opponents are still equally well qualified despite the application of these regulations, the owner wins (“beatus possidens”).
  • Right to possess: Thus, for. B. the tenant, who has a right of possession on the basis of the rental agreement, cannot be sued for surrender (eviction).
  • Property: If the defendant can prove his property, he wins.

German law

Although the content and meaning of § 1007 BGB are completely disputed and there has hardly been any agreement on some bases, the petitarian claim from § 1007 BGB can be understood as a positive effect of the actio publiciana, although from § 1007 BGB the former owner in good faith only demands surrender can. Failure to disrupt possession other than withdrawal can be demanded independently of a right to possession with the possessorial claims from § 861 and § 862 BGB. The claim from § 1007 BGB is next to the surrender claim from the property (§ 985 BGB) insignificant in legal practice, since § 1006 BGB lays down comprehensive presumption rules for the property from the possession.