An expectant right exists when so many requirements have already been met by a multi-act occurrence of a right that the other party involved in the creation of the right (e.g. the seller in the case of a transfer of ownership subject to retention of title) can no longer unilaterally prevent the creation of the right. One can then speak of a legally secure position.
An expectant right can arise, for example, in the event of a transfer of ownership subject to retention of title ( § 929 sentence 1, § 158 paragraph 1 BGB ).
The mere expectation in civil law is the actual prospect of future legal acquisition. The expectant right, on the other hand, aims to ensure that a legal entity does not yet have full rights, but has already acquired such a high legal position that this right is protected in legal transactions like a full right. The expectant right is a subjective right to acquire , whereby it does not yet represent a real right to the object to be acquired that is effective against everyone .
According to the opinion of the Federal Court of Justice (BGH), which was first put forward in February 1966, so many requirements must already be met by the multi-act creation of a right that the seller can no longer destroy the legal position of the buyer by unilateral declaration. As early as May 1958, the BGH affirmed the existence of an entitlement to purchase fruit . In the case law of the BGH, the prospective right of the conditional buyer has been described as a preliminary stage to property (full right), which is not "other" ( aliud ) compared to property , but only an essentially "less" ( minus ). The "essential minus" means less than property, but it is similar to property. The expectant right is particularly important in connection with the legal system of retention of title, which is why the BGH has specified it there to such an extent that it can also be applied to other cases accordingly.
The concept of expectant rights is unknown to the BGB , but expectant rights are recognized today. A generally accepted definition of the term does not exist today, which is why the question of materiality alone labels are useful as "acquisition position with increased legal validity" or "secured acquisition position." They have emerged from the structure of needs of commercial traffic, which regularly has to complain about a shortage of capital. Mere purchase positions could not be traded and therefore had to be made more usable in order to be marketable. The legal figure of the entitlement right emerged, which today develops a lot of its own dynamic.
In addition to the recognition of the expectant right and its proximity to full law, the aim was to ensure that the transfer works , especially in the case of bona fide acquisition (transfer problem), attachment (attachment problem) and tortious protection (protection problem), so that it is brought closer to real rights can.
A distinction has to be made between real expectant rights , claim rights and expectant rights with regard to other rights . The most common is the expectant right to acquire ownership of movable property in the event of conditional transfer. For this purpose, rules have been developed through case law, some of which can also be transferred to other cases of expectant entitlement.
Real entitlement rights
- Purchase under retention of title : The transfer of ownership from a purchase contract is subject to the condition precedent according to § 158 Abs. 1 BGB , as long as the buyer has not paid the purchase price in full ( § 449 Abs. 1 BGB). He receives an expectant right that automatically becomes a full right with full payment of the purchase price.
- Entry of a notice of conveyance when purchasing property : The notice of conveyance secures the buyer's right to procure the property. Such an expectant right of the reliever is to be affirmed if he himself has applied for registration as owner; because according to § 17 GBO , the land registry must deal with this application before subsequent applications for registration, so that the purchaser is protected from other dispositions by the seller ( § 883 Paragraph 2, § 888 BGB). It follows from the equal treatment of expectant rights with property that the same rules apply to the need to form a cancellation agreement for a property purchase contract as for the full right that has already been transferred.
- Real property liens : The registered creditor of a real estate lien already has an expectant right to the real estate lien before the secured claim is paid out (value date) in accordance with Section 1163 (1) sentence 1 BGB. This expectant right becomes a full right when it is paid out.
- Real right of first refusal : Pursuant to Section 1094 of the German Civil Code (BGB), if the right of first refusal is entered in the land registry, the beneficiary is entitled to demand that the owner of the property or the right of the same property transfer it to himself.
- Claims entitlements :
- There must already be an obligation by virtue of which the obligee has a legal claim to a claim . If, for example , there is a rental agreement , the resulting future rental claim is a claim that he can dispose of as part of an advance assignment . The credit security of the global assignment also gives the collateral taker a contingent right to dispose of a claim (Section 398 , Section 158 (1) BGB), which becomes a full right when the claim arises. If a security transfer is conditionally agreed by the security contract, the legal position of the security provider and the borrower at the same time is secured in such a way that he acquires an expectant right, because it depends solely on him whether he acquires ownership of the security object by repaying the secured loan.
Entitlement to other rights :
- Between inheritance and subsequent inheritance , the subsequent heir receives a prospective right in accordance with § 2100 , § 2106 BGB, provided that the heir is initially a previous heir in accordance with § 2108 Paragraph 2 Clause 1 BGB. The future heir has no prospective right before the inheritance because the testator can still influence the succession during his lifetime.
- Patent : The patent applicant has in relation to the Patent Office entitled to grant the patent (§ § 6 , § 7 , Section 1 of the Patent Law.). Even before patent protection (acquisition of full rights), patent law grants the patent applicant a claim for compensation against any patent infringements through Section 33 (1 ) PatG . The right to a patent is therefore to be understood as an expectant right.
- Trademark : With the application of a trademark, an expectant right to its registration arises, which must take place if the registration requirements according to § 41 MarkenG are met. If the registration requirements are met, the applicant can no longer be refused entry of the trademark in the trademark register . The registration of the trademark right therefore establishes a prospective right to the later trademark right.
The finder and the owner of the property have no entitlement to expect . The inheritance contract merely creates a bond under inheritance law and does not grant the heirs of the contract any legally secured entitlement. Before the death of the long-lived spouse, the final inheritance of the Berlin will has no transferable entitlement right, even if there are many arguments in favor of it.
Creation of the entitlement right
The starting point is the entitlement. Entitlements appear as an unsecured legal position in the form of mere "prospects", such as in the case of pension equalization according to § § 1587 ff. BGB up to legally secured entitlement rights. It is peculiar to private law expectant rights that the acquisition of a right has been initiated but not yet completed. With the completion of the acquisition process, the expectant right then becomes a full right. An expectant right therefore only makes sense if there is a period of time between the initiation and completion of a right that can include the legally relevant need for legal protection. Within this period of time, the point at which the acquirer position already deserves protection based on full rights must be sought.
According to the case law of the Federal Court of Justice, the entitlement right arises when the multi-act occurrence of a right “already fulfills so many requirements that the seller can no longer destroy the legal position of the purchaser by a unilateral declaration”. The BGH formulates slightly more weakly elsewhere that characteristics of the expectant right are an acquired legal position of the purchaser, on the basis of which an impairment of this status is excluded after the normal course of events . The literature sometimes formulates that the acquisition of full rights may only depend on the purchaser himself . For this reason, the expectant right is regarded in legal theory as an essentially minus to full law. Full rights themselves, such as property, give the right holder extensive legal power to deal with a thing at will (see § 903 BGB). Ownership is therefore a comprehensive right to rule over a thing.
Protection of expectant rights
Ineffectiveness of interim rulings
In the case of retention of title, the buyer is protected by § 161 , § 162 BGB against interim dispositions by the seller until the condition occurs. The occurrence of the condition is usually the full payment of the purchase price. The direct consequence of the full purchase price payment is the acquisition of property by the buyer.
The bicycle dealer V sells a bicycle to the buyer K under retention of title. After the bicycle has been handed over, K pays half of the purchase price to V. After a few days, V sells the bicycle that he has already sold to K to D and transfers it unconditionally in accordance with Section 931 of the German Civil Code (BGB) by submitting his claim to return to K. D resigns. D is now the temporary owner of the bicycle, which is, however, encumbered with K's entitlement. If K now pays the remaining purchase price to V, K becomes the owner of the bicycle and D loses his ownership of it, since the full purchase price payment by K brings about the occurrence of the conditions. According to the prevailing opinion, this result is made possible by the corresponding application of Section 936 (3) BGB.
D could only acquire unencumbered ownership if K had handed the bike over to V for repair purposes, and V had then transferred the bike to D in accordance with Section 929 of the German Civil Code (by agreement and handover). In this case, D can acquire unencumbered property in good faith and K expires, cf. Section 161 (3) BGB.
In the case of property transfers, the recipient of the transfer also enjoys protection. This is directed against a revocation within the meaning of § 873 paragraph 2, § 925 BGB (notarial certification) and restrictions on disposal. As soon as the entry in the land register has been applied for, according to the arrangement of § 878 BGB, any subsequent restrictions on the disposal of the seller no longer harm . Against interim rulings, § 17 GBO helps the purchaser to succeed with its principle of observing the order of priority of the receipt of applications. Since this purely formal protection can fail, the reliever enjoys a relatively weak expectant right before entry in the land register. Far more effective than the formal protection norm of § 17 GBO is therefore the agreement of a priority notice according to § 883 , § 888 BGB. According to the rulings of the Hamm Higher Regional Court, a non-transferable creditor who is subject to prior notice would enjoy a prospective right even if an application for entry was missing.
Right to possession and protection of property
According to a minor opinion, the expectant right already establishes a real right to possession , which is endowed with effect vis-à-vis everyone within the meaning of Section 986 of the German Civil Code. The prevailing opinion rejects this, however, since the expectant right as a mere preliminary stage to the acquisition of full rights is only intended to protect the acquisition of property. Such protection is also possible if the beneficiary is not the owner at all. In the case of the retention of title purchase, the acceptance of a real right to possession based on an expectant right is usually dispensable anyway, since the purchase contract already establishes a right to possession of the item within the meaning of Section 986 BGB. In accordance with Section 433 (1) BGB, the seller is obliged to provide the buyer with direct possession of the purchased item. So as long as the sales contract is effective and continues, the conditional buyer has an obligatory right of ownership from the sales contract; mandatory because it comes from a contract under the law of obligations. Such rights can establish a right of possession in accordance with Section 986 (2) BGB.
Thwarting the occurrence of the conditions
Protection against unfaithful thwarting of the occurrence of a condition is usually guaranteed by § 162 paragraph 1 BGB, because according to this, the occurrence of the condition is considered to have occurred if the seller prevents it against good faith . Since the condition only consists of the fulfillment of an obligation, the provision is rather inapplicable. However, if the seller refuses to accept the last purchase price installment, the seller is in default of acceptance . For this, there are again special regulations about § § 372 , § 378 BGB, because the buyer can bring about the occurrence of the conditions by depositing the remaining purchase price . The conditional buyer acquires ownership of the item through the fictitious occurrence of the conditions.
In addition, the holder of an expectant right can also assert property protection claims from § § 858 ff. BGB and § 1007 BGB. These claims are aimed at restoring possession or eliminating the disruption of possession . According to the prevailing opinion, § 985 , § 1004 BGB are also applicable analogously.
Protection against creditors of the seller
The prevention of the occurrence of the condition can be problematic if the creditors of the conditional seller want to enforce the goods at the buyer. If the buyer exercises custody of the item, he enjoys protection as a "third party not ready to surrender" within the meaning of § 809 ZPO . However, if he has given it away, for example because he has had a repair carried out on it by the conditional seller, the protection fails and the question arises as to whether the third party action according to § 771 ZPO applies. The BGH affirms this because the bailiff does not transfer property as a legal transaction (legal requirement: "right that hinders the sale"), but by virtue of an act of sovereignty. In contrast to the BGH, some of the literature in state acts of sovereignty recognizes a harmless order of Section 161 (1) sentence 2 BGB, with the result that the third-party action for objection by the first purchaser fails and his expectant right is lost due to unconditional transfer of ownership to the second purchaser.
According to the prevailing view in jurisprudence and teaching, the expectant right is recognized as other right within the meaning of Section 823 (1) BGB. In the opinion of the BGH, the injured party is entitled to the value of the item less the remaining purchase price owed to the seller.
Whoever violates the trademark entitlement right does not owe any damages; however, the beneficiary is to be compensated. The h. M. denies any claims.
Acquisition from the beneficiary
The expectant right is originally transferred according to § 929 ff. BGB like the full right (property) by agreement and transfer of the thing. The transfer, by constructive possession in accordance with § 930 , § 931 BGB to be replaced. By virtue of the obligatory legal relationship, the entitled person only gains indirect possession.
The unanimous view also corresponds to the fact that the reserved buyer can transfer his entitlement to a third party, even without the consent of the reserved seller. Mere agreement according to § 413 , § 398 BGB is not sufficient for this, however, since, contrary to the principle of publicity , the acquisition of the property would also be mediated without the purchaser receiving any type of property. Therefore, the form of § § 929 ff. BGB is required for the transfer. In addition, the seller of the expectant right must not make it more difficult for the purchaser to acquire full rights.
In practice, there are also very problematic cases in which the item is transferred as security under Section 930 of the German Civil Code (BGB) without informing the purchaser that the seller only has an expectant right to the item. The so-called supplementary contract interpretation or reinterpretation often leads to the conclusion that the purchaser has at least acquired the expectant right.
Acquisition from unauthorized persons
It is disputed whether an unauthorized person can transfer an expectant right to a third party. According to the prevailing opinion, it is possible to acquire an existing entitlement right from the unauthorized person in good faith analogous to § § 932 ff. BGB. For the bona fide second acquisition it is stated that the expectant right would otherwise be difficult to market. Otherwise, the buyer would always have to live with the risk that the expectant right does not actually belong to the seller. Since the legislature has resolved this problem with property by buying in good faith in favor of traffic protection, these regulations must be applicable analogously to the entitlement right that is legally related to property. Against this, in turn, the objection is that the legal status of the property has already been destroyed by the fact that the owner admits to only have one expectant right. Therefore he could not be in good faith within the meaning of § 932 Paragraph 2 BGB. In contrast, it is not possible to acquire in good faith if the expectant right does not exist at all.
However, there is agreement in the event that the entitlement to be transferred does not exist: In this case, acquisition in good faith is excluded, as this only serves to overcome the seller's lack of right of disposal. However, the legislature did not aim to fake the existence of a legal position to be acquired.
The attachment of the entitlement to movable property
The attachment of property is covered by attachment in kind. But the expectant right can also be attached. This is necessary, for example, when creditors want to access items that have largely been paid off but are still owned by the seller due to retention of title. However, it is controversial how the attachment is to be carried out. There are three views on this:
Theory of pure attachment
According to the theory of the pure seizure of property, with seizure of the thing according to § § 808 f. ZPO also seized the expectant right to her at the same time. The owner (conditional seller) loses the possibility of objection by means of a third party complaint ( § 771 ZPO). Instead, according to Section 805 of the German Code of Civil Procedure (ZPO), he was only referred to the payment of the remaining purchase price, which he could demand from the auction proceeds by way of preferably satisfaction . The objection to this view is that the seller with retention of title would not only be deprived of the third party objection action in a completely unreasonable manner, but also the realization of the thing itself.
Theory of pure garnishment
The theory of the purely legal attachment allows the attachment according to § 857 paragraph 1 ZPO to suffice. The lien established in this way continues in accordance with § 1287 BGB, § 847 ZPO after the occurrence of the conditions, so-called real surrogation . For the seizure of the legal position of the consignee prior to entry in the land register, however, the BGH has meanwhile recognized the route via Section 857 (1) ZPO.
Double attachment theory (prevailing opinion)
The BGH and the prevailing opinion advocate double seizure as a solution. The seizure happens according to § 857 ZPO i. V. m. § 829 ZPO. So first of all the expectant right is recorded as a right through the attachment. Since the right of lien does not continue on the property when the condition occurs, the thing itself is also attached, which becomes effective following the attachment. With the additional seizure of property, the previous lien on the expectant right is converted into a lien on the item upon full payment of the purchase price. The precondition for the occurrence of the conditions prevents the conditional seller from being burdened by the attachment. Dieter Medicus sees this legal method as complicating the legal processes, since it is only due to an exaggerated observation of the principle of publicity .
The entitlement in the liability association
The extension of the foreclosure of a mortgage on accessories, which initially came into the property of the property owner as an expectation and which this expectant right has since been assigned as security by the property owner to the lender to secure a loan, was intensively discussed in literature and case law .
To make this case understandable: A hotel operator buys beds for his business under retention of title and brings them to his property under a mortgage. Since he needs another loan, he transfers the acquired entitlement in accordance with § 930 to the lender and uses the money to pay the remaining purchase price claim to the conditional seller. Now the mortgage lender, who has hopelessly outstanding claims against the hotel operator, is executing foreclosure on the property. The lender, who only owns indirectly, then requests the release of the beds assigned to him. Now the question arises whether the security property of the lender (the beds in the hotel) is covered by the mortgage liability if it has become and remained an accessory within the meaning of §§ 37 No. 5 ZVG , 1120 BGB. In such a factual context, the Reichsgericht raised the question of whether there was a direct or transit acquisition and came to the conclusion that a direct acquisition should be made dependent on the consent of the seller from the conditional seller. The BGH comes to the same conclusion in the above dispute (direct acquisition), but waives the requirement of the consent of the conditional seller. The relevance lies in the different consequences: In the case of a pass-through acquisition, the beds would have become the property of the hotel operator for a moment and then inextricably linked to the liability association of the auction. The security owner would have no "right to the auctioning off" and could not demand the surrender according to § 985 BGB, rather the purchaser would acquire by means of an award according to § 90 paragraph 2, § 55 paragraph 1, 20 paragraph 2 ZVG, § 1120 , § 97 paragraph 2 BGB ownership of the beds. In the case of direct acquisitions preferred by the jurisprudence, on the other hand, the lender and security creditor receive ownership and may demand it.
End of the expectant right
The expectant right is lost if the contractual relationship on which it is based (for example the purchase contract with retention of title) is canceled. If the occurrence of the condition is no longer possible, the expectant right lapses.
The entitlement right is considered to be more or less accessory because the underlying condition must actually occur; that usually depends on the contract. If, for example, the conditional seller withdraws from the purchase contract , the condition of full payment of the purchase price will no longer be able to occur, the expectant right no longer applies and can no longer become a full right.
The legal nature of the expectant right corresponds to that of the full right of ownership, so that its transferability as well as that of ownership results from § § 929 ff. BGB, its pledability from § 1273 BGB, its seizability from § § 808 , § 857 ZPO and the claim to surrender - as with property itself - from § 985 BGB. Which can also in an entitlement enforcement be operated even when it falls insolvency of conveyance receiver according to § 35 InsO in the bankruptcy estate . In the context of the accounting regulations , the expectant right is treated like the (future) full law within the framework of a primarily economic perspective , so that the reserved buyer may already activate the reserved goods.
- Fritz Baur , Jürgen F. Baur , Rolf Stürner : Property law . 18th edition. Verlag CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 59 B. IV. 1. (Rn. 33, p. 755) and 5. a. (Rn. 45, p. 761).
- Franz Hofmann: Intangible property rights . Mohr Siebeck, Tübingen 2009, ISBN 978-3-16-150151-7 .
- Karl Larenz : Textbook of the law of obligations . 13th edition. Volume II, half volume 1: special part . Verlag CH Beck, Munich 1986, ISBN 3-406-09824-X , § 43 II. C., P. 100 ff .
- Ludwig Raiser : Real entitlements . Mohr Siebeck, Tübingen 1961, p. 37 ff .
- Jochen Lux: The expectant right in the case of conditional transfer - a mere language abbreviation or an independent absolute right? In: Legal Education . Verlag Walter de Gruyter, 2004, ISSN 0170-1452 , p. 145 ff .
- ^ Rudolf Lehmann: To the abolition of the expectant right to a property . In: DNotZ 1987, 142 .
- ^ Alpmann Brockhaus : Study Lexicon Law , Verlag CH Beck 2005, p. 99.
- ↑ BGHZ 45, 186 , 189 f.
- ↑ BGHZ 27, 360 , 368
- ↑ BGHZ 28, 16 , 21
- ^ A b Hans Hermann Seiler : History and the present in civil law , Heymanns, Cologne 2005, ISBN 978-3-452-25387-3 , pp. 229-295 (254 f.).
- ^ Fritz Baur , Jürgen F. Baur , Rolf Stürner : Property law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 3 Rn 44 ff.
- ^ 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 , § 5 III 4.
- ↑ Alfred Etzrodt: The transfer of entitlement rights from conditional transaction , 1935, p IV.
- ^ Harm Peter Westermann / Ansgar Staudinger, Westermann / Staudinger, BGB-Dingerecht , 2017, p. 143
- ↑ BGHZ 83, 395 , 399
- ↑ Alpmann Brockhaus, Fachlexikon Recht , 2005, p. 99
- ↑ Anselm Raddatz, The estate affiliation of inherited partnership shares , 1991, p. 120
- ↑ BGHZ 87, 367 , 369
- ^ Franz Hofmann, Immaterialgüterrechtliche Anwartschaftsrechte , 2009, p. 85
- ↑ BGH GRUR 1994, 602, 603 - rotary brush tool
- ↑ BGH GRUR 2000, 892 - MTS
- ↑ Heinz Hübner, General Part of the Civil Code , 1996, p. 195
- ^ Wilhelm Kregel, in: Kurt Herbert Johannsen (Hrsg.), BGB-RGRK , Volume V, 1975, note before § 2274, Rn. 5
- ^ BGH, judgment of July 4, 1962, Az .: V ZR 14/61
- ^ BGH judgment of January 5, 1955 ( IV ZR 154/54), In: NJW . Born 1955, p. 544.
- ↑ BGHZ 49, 197 ff. (202).
- ↑ cf. Dieter Medicus : Civil law. 19th edition. Carl Heymanns Verlag, Cologne 2002, ISBN 3-452-24982-4 , § 20 (entitlements).
- ↑ BGHZ 28, 16 ff. (21).
- ↑ OLG Hamm NJW 1975, 879 f.
- ↑ BGHZ 55, 20 ff.
- ↑ so already RGZ 156, 395.
- ↑ a b c Dieter Medicus : Civil law. 19th edition. Carl Heymanns Verlag, Cologne 2002, ISBN 3-452-24982-4 , § 20 II – V.
- ↑ GRUR International. Volume 2010, p. 376 (378 ff.)
- ^ Paul Ströbele, Franz Hacker: Trademark Law. Comment . 9th edition. Carl Heymanns Verlag, Cologne, § 4 Rn. 7th
- ↑ BGHZ 75, 221 ff.
- ↑ BGHZ 20, 88 (99-100).
- ↑ Jürgen Oechsler: § 932. Rn. 20. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 .
- ^ Dieter Medicus, Jens Petersen: Civil law . 26th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5462-8 , Rn. 475.
- ↑ Wolfgang Wiegand: The purchase of movable property in good faith according to §§ 932 ff. BGB. In: Legal Training. 1974, pp. 201 (211-212).
- ↑ Federal Court of Justice: IX ZR 8/83. In: New legal weekly. 1984, p. 1184 (1186).
- ↑ Jürgen Oechsler: § 932. Rn. 21. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 .
- ↑ in detail on this: Ekkehard Schumann JuS 1975, 165 ff. (167).
- ↑ Hans Brox , Wolf-Dietrich Walker : General law of obligations. 39th edition. CH Beck , Munich, 2015, ISBN 978-3-406-64653-9 Rnr. 807 ff.
- ↑ Ludwig Raiser : Dingliche Anwartschaften. (= Tübingen jurisprudential treatises. Volume 1). Mohr, Tübingen 1961, p. 90 ff.
- ^ Fritz Baur : Textbook of Property Law. 14th edition. 1987, § 59 V 4a.
- ↑ BGHZ 49, 197 ff.
- ↑ BGH NJW 1954, 1325 ff.
- ↑ BGHZ 35, 85 ff.
- ↑ RGZ 140, 223 ff.
- ↑ BGH ruling v. April 10, 1961 - VIII ZR 68/60, BGHZ 35, 85 (PDF)
- ↑ BGHZ 49, 197
- ↑ Gabler Wirtschaftslexikon , Volume 6. Springer Gabler , 1984, Sp. 2139.