At the beginning

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At the beginning is the legal formal touching of a lost and found movable thing ( Fahrnis ) under the assertion of the better right to it than the current owner should have. By touching, a lawsuit was formally brought against the owner of the thing (Anefangklage) . This had to defend himself in the following proceedings.

Until the 19th century , this legal institute was well processed and documented in the legal teaching of well-known legal scholars (e.g. Otto von Gierke , Heinrich Brunner and others), today it is almost completely forgotten.

Origin of name

Anefang ( ahdt. : Anafanc , anafanjan , furifangon , altbay .: hantalōd , anglsäch. : Anefanc , befōn , aetfōn , aetbefōn , forefong, lat. Intertiatio , niederld. : Aenfang, anefang, UGm. : Furfang , verfang ) means in Germanic and medieval law, touching while observing certain formalities in order to legally take possession of a movable thing. This originally had to be done in a precisely prescribed manner, e.g. B. With cattle (horse) the right ear of the animal had to be grasped with the left hand and the front leg of the animal had to be stepped with the right foot. The right (possibly armed) hand remained free to swear.

Under Anefang the term is understood "the beginning."

Initial charge

Basics

The initial prosecution was intended to push back earlier forms of self-help and replace it with legal proceedings before a court.

As a matter of principle, no theft allegation (theft lawsuit) was brought against the current owner of the movable property, but rather the better right to it was asserted. A right that was previously lost through the involuntary loss of the goods . The anefangklage was also not a property suit, since the anefangklage was also due to the person who legally had the thing with the will of the real owner (shop steward who had the thing on loan , as pledge , for safekeeping, etc.). If the matter was therefore withdrawn from the shop steward, the real owner himself could not bring the initial charges, only the shop steward (in Scandinavia this was partly regulated differently).

The involuntary loss can be caused by the loss of the item, a theft or some other form of loss (disputed). The lawsuit was excluded if the matter was withheld, i.e. if it had previously been voluntarily released from the trade of the owner or honest owner.

Filing a lawsuit

The out-of-court handling of the movable property was originally mandatory for the filing of a lawsuit. With this act, the plaintiff described precisely this matter as something he had lost. A further charge was therefore not necessary. The beginning was z. B. permitted on cattle, slaves, weapons, jewelry.

Statement of Defense

The current owner of the thing had to answer the complaint in a formally correct manner. If he did not do this, the plaintiff could take possession of the matter immediately, as if he had found it in the course of tracking and the owner was then considered a convicted thief .

The owner's reply also consisted in publicly naming the third party (granting, informant, foreman) from whom he had previously received the item. The procedure is therefore also referred to as a third-party procedure . If a named source was in default, he was considered a thief.

Procedure

According to Gothic, Franconian, Upper German and more recent Saxon law, the current owner of the thing had to bring the foreman from whom he received the thing to court within a certain period of time and formally vow it immediately after the start; according to the more ancient Longobard and earlier Saxon law, however, he led the plaintiff to the foreman (grant). Some legal sources limit the number of foremen to appear or to be named to the third, sixth or seventh foreman.

The plaintiff had to prove in the proceedings that the thing had been stolen or otherwise lost and had previously belonged to him. This could e.g. B. be done by a brand or a house sign on the thing (except for living slaves ). For certain things, such as B. clothes , the beginning was not allowed.

The foreman became obliged to enter the process.

The disputed matter was handed over to the respective foreman in good hands, "pushed", he received the push and this stepped into the proceedings on behalf of the previous defendant by legally laying his hand on the matter.

If the defendant or the person named by him failed, he had to surrender the matter and pay a fine. If the plaintiff failed, he had to pay the defendant a fine and the matter remained with the defendant.

Persuasion

The Franconian sources already mention the defendant's objection that he inherited the matter. Subsequently, the defense of the original acquisition was also permitted. This may lead to the dismissal of the lawsuit, but the plaintiff was able to submit by oath and witnesses that the thing had previously been stolen from him (although not necessarily by the defendant). If the defendant relied on having acquired the thing from the plaintiff himself, he had to provide evidence.

Design in different legal areas

The Anefangklage was known in the southern Germanic area as well as in northern Europe / Scandinavia, but the details were different.

Development of the Anefangklage

In the High Middle Ages, the initial lawsuit developed into a surrender lawsuit or surrender claim. In some cases, this was restricted to certain types of transmission (e.g. on the market , maritime trade with narrow preclusion periods ).

Differentiation from theft suit

The theft suit is aimed at prosecuting the thief, obtaining the theft penalty and transferring the item back. The Anefangklage, however, is primarily aimed at the return of the property and secondarily, subsequently, (originally) the investigation of the thief by making the current owner liable. The aim of both lawsuits is the same, only the means are different.

literature

  • Heinrich Brunner: German legal history . Leipzig 1892.
  • Karl Rauch: Track Following and Beginning in Their Interrelationships. A contribution to the history of the German driving process . 1st edition. Publishing house Böhlau, Weimar 1908.
  • Johannes Hoops: Reallexikon der Germanischen Altertumskunde . 2nd Edition. de Gruyter, Berlin / New York 1973.
  • Richard Schröder: Textbook of German legal history . 5th edition. Publishing house Böhlau, Leipzig 1907.
  • Tim Meyer: Danger in court: the strictness of form in Saxon-Magdeburg law . Verlag Böhlau, Cologne / Weimar / Vienna 2009, ISBN 978-3-412-20444-0 .

See also

Individual evidence

  1. ↑ Karl Theodor Pütter in The Doctrine of Property According to German Rights : illustrated from the sources ..., Berlin 1831, p. 144.
  2. ↑ This strictness of form has been replaced more and more over the centuries.
  3. ↑ Albrecht Cordes et al. a., Concise Dictionary of German Legal History (HRG), Berlin 2004, Erich Schmidt Verlag.
  4. ↑ In its original form, the lawsuit contained both private law and criminal law components.
  5. ↑ a b c d e f g h i j k Reallexikon der Germanischen Altertumskunde, Volume 1, pp. 280–282.
  6. ↑ a b Karl Rauch: Trace and Anefang in their reciprocal relationships , Weimar 1908, Hermann Böhlaus successor, p. 40.
  7. ↑ Karl Theodor Pütter in The Doctrine of Property According to German Rights : illustrated from the sources ..., Berlin 1831, p. 148.
  8. ↑ Reallexikon der Germanischen Altertumskunde, Volume 1, p. 280. Karl Theodor Pütter in The doctrine of property according to German rights : presented from the sources ..., Berlin 1831, p. 145 also writes of an act of touching in the presence of a judge or compulsory messengers .
  9. ↑ a b Karl Rauch: Trace and Anefang in their reciprocal relationships , Weimar 1908, Hermann Böhlaus successor, p. 45.
  10. ↑ Danish and Swedish people's rights, younger Saxon city rights, French. Coutumes, Spanish Fueros. According to Salian law, all informers had to appear at the first court hearing, in Ribuarian law only if the lost item was a slave .
  11. ↑ Tim Meyer in danger in court: the strictness of form in Saxon-Magdeburg law , p. 91.
  12. ↑ Quoted from Gerhard Köbler : Lexicon of European Legal History .
  13. ↑ Tim Meyer in danger in court: the strictness of form in Saxon-Magdeburg law , p. 91.
  14. ↑ Karl Rauch: Track following and beginning in their reciprocal relationships , Weimar 1908, Hermann Böhlaus successor, p. 45 with reference to Heinrich Brunner.
  15. ↑ Karl Rauch: Track following and beginning in their reciprocal relationships , Weimar 1908, Hermann Böhlaus successor, p. 47.