Previous owner claim
As claims by the former owner in to § 1007 BGB codified claims of the former owner of a chattel referred to restitution against the current owner. In some cases, the claims of the previous owner are also called petitory claims to property protection, as a distinction to the possessorial property protection claims .
Claim in the case of bad faith acquisition of ownership by the current owner
Pursuant to Section 1007 (1) BGB, the previous owner of a movable property has the right to demand that the current owner surrender the property if he was not in good faith when he acquired the property. An owner-purchaser is always not in good faith and therefore in bad faith when he knows or is unaware that he has no right to property due to gross negligence .
The claim is excluded if the previous owner was not in good faith when purchasing the property ( Section 1007 Paragraph 3 Sentence 1 Var. 1 BGB) or if he has given up possession ( Section 1007 Paragraph 3 Sentence 1 Var. 2 BGB).
The claim is also excluded if the current owner has a right of possession vis-à-vis the previous owner ( Section 1007 Paragraph 3 Sentence 2 BGB in conjunction with Section 986 BGB). If both have not concluded a contract based on which the current owner has a right of possession vis-à-vis the previous owner (rental agreement, loan agreement, purchase agreement), only an absolute right of ownership (ownership, lien, usufruct) of the current owner is possible.
Claim if the item is lost
According to Section 1007, Paragraph 2, Sentence 1 of the German Civil Code, the previous owner of a movable item has the right to demand that the current owner surrender the item if it has been stolen, lost or otherwise lost from the previous owner . A thing is lost when the immediate owner has lost possession of it without or against his will.
Like the claim from Section 1007 Paragraph 1 BGB, the claim from Section 1007 Paragraph 2 Sentence 1 BGB is excluded if the previous owner was not in good faith when purchasing the property ( Section 1007 Paragraph 3 Sentence 1 Var. 1 BGB), if he has given up possession ( § 1007 Abs. 3 S. 1 Var. 2 BGB) or if the current owner has a right to possession over the previous owner ( § 1007 Abs. 3 S. 2 BGB i. V. m. § 986 BGB).
In addition, the claim is also excluded if the current owner is the owner of the item or if the item was lost before the previous owner's possession time ( Section 1007 (2) sentence 1 BGB).
history
The claims of the previous owner have their historical origin in the Actio Publicana of Roman law . This allowed the Ersitzungsbesitzer , so the rightful (iusta causa) and good faith (bona fides) possessor, proceed as an owner against the withdrawal of the matter by the end of the Erzsitzungszeit was faked. In this way, the Actio Publiciana not only protected the owner of the property on the way to the acquisition of property, but also protected owners who had difficulties in proving their property in court. As legitimate and bona fide owners, they could also rely on the Actio Publiciana if necessary.
When the Civil Code was codified towards the end of the 19th century , the importance of the Actio Publiciana was only minor due to the introduction of acquisition in good faith ( § 932 BGB) and the presumption of ownership in favor of the owner ( § 1006 BGB). Nevertheless, the commission considered a claim “from previous possession against the less entitled person” to be necessary and included § 1007 in the civil code.
Individual evidence
- ↑ cf. Karl-Heinz Gursky : Staudinger Commentary on the Civil Code . 2013, § 1007 no. 2 .
