Aliud (law)
Aliud is the Latin expression for something else (Latin: alius ; something else [of several]).
In the jurisprudence of the term is to delineate a claim target used or the classification of standards and control areas, but which by law is not regulated.
Examples
Law of obligations
An aliud describes the case in which the wrong object is given as an achievement; on the other hand, if it is defective, one speaks of Peius ; if it is not enough, one speaks of minus .
Situation in Germany
Since the German law of obligations reform, a delivery has been a material defect, Section 434 (3) BGB.
Situation in Austria
In Austrian and Liechtenstein law of obligations, an aluding has the effect that, despite the fact that the performance has already been taken over as fulfillment by the obligee, the consequences of default under § 918 ff. ÖABGB or § 918 ff. FlABGB or the consequences of subsequent impossibility according to § 920 ff . öABGB / flABGB are used. Otherwise, these are only used if there has been no handover.
The obligee therefore does not have to limit himself to the legal aid according to § 922 ff. ÖABGB / flABGB in the case of an aluding , but can either put the debtor who has paid the aludge in default (if it is still objectively possible for him to pay ) or withdraw from the contract if the service is lost (or provide one's own service and demand the value of the no longer possible service from the debtor).
According to Austrian case law, this is applicable to both species and generic debts (controversial legal opinion).
In teaching, however, either the treatment of an alaud is advocated entirely according to warranty law or a differentiation between "simple" alaud (which should be assessed according to warranty law) and "absolute" alaud (which should be treated according to § 918 ff. ÖABGB / flABGB ) performed.
Patent law
An inadmissible extension of the scope of protection of a patent within the meaning of Article 123 (3) EPC exists if it is obvious that, after a patent claim has been amended, an act may be considered as an infringement that could not be regarded as an infringement of the granted patent before the amendment . This should, among other things, always be the case if the amended claims are directed to a subject other than the granted claims (so-called aliud).
Constitutional law
The Federal Constitutional Court ruled that because of the different target groups, the Civil Partnership Act was an alien to marriage . A distance requirement between marriage and civil partnerships cannot be found in constitutional law.
Criminal law
The preventive detention is an aliud to imprisonment . For this reason, subsequent imposition of preventive detention cannot be viewed as a double punishment.
Web links
Individual evidence
- ↑ Decision T 378/86 of the Boards of Appeal of the European Patent Office , in the Official Journal of the European Patent Office, edition 10/1988, page 389; (Online) (PDF file; 836 kB)
- ↑ BVerfGE 105, 313
