Recovery excess

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As upswing excess one is legal concept referred to the Federal Court in its judgment in the realm railway locomotive field case as an extension of the scope of the rules to owner-owner relationship has developed. The admissibility of the figure is controversial in jurisprudence, the position that affirms it is also known as the upswing theory. There is an excess of boom when a third-party owner initially entitled to property changes his will to own property . In this case, according to the advocates of the upswing theory, the right of possession should lapse and possession should be acquired again within the meaning of Section 990 (1) BGB. For liability, it is therefore sufficient if the owner negligently fails to recognize at the time of his change of will that he is not entitled to own ownership.

For this understanding it is argued that the owner-owner relationship primarily privileges the owner. Therefore, when assessing the honesty of the owner according to Section 990, Paragraph 1, Sentence 1 of the German Civil Code (BGB), it depends on the point in time at which ownership is acquired. In the case of originally legal third-party possession, this is the case at the moment when the owner changes his will to own. On the other hand, it is pointed out that the person converting his property can be expected to reflect on his property right. Some lawyers want to apply the figure of the boom in excess only to cases in which the previous right of ownership is completely lost due to the change of will. This is the case, for example, if the right of ownership arises from an authorized management without an order . It ends with the change in ownership, while a lease is independent of the tenant's ownership.

Opponents of the upswing theory see the expression “acquisition of property” in Section 990 (1) BGB as a reference to Section 854 BGB. They argue that in the sense of the norm, only the initial acquisition of actual control over the thing is to be regarded as acquisition of ownership. A change in ownership, however, is not a renewed acquisition within the meaning of § 990 BGB. Therefore, according to § 990 Paragraph 1 Sentence 2 BGB, the owner who converts his will to own is liable if he has positive knowledge of his lack of ownership. In particular, it is disputed that the change in the will to own the property altogether lapses because then every owner could release himself from his contractual liability by a simple change of will.

Individual evidence

  1. ↑ BGHZ 31, 129 ; Dietmar Schanbacher , attorney , commentary on the BGB , 2005, § 987 Rn. 64; Peter Bassenge , Palandt , 2015, preliminary to § 987 Rn. 11
  2. ↑ Christian Baldus , MüKo BGB , 2013, § 990 Rn. 13.
  3. ↑ Karl-Heinz Gursky , Staudinger , 2012, § 990 Rn. 29 f.
  4. ^ Fritz Baur / Rolf Stürner , Property Law , 2009, § 11 Rn. 27; Hans Josef Wieling , Property Law , Berlin 2007, § 12 II 3 c.
  5. ↑ Ludwig Raiser , JZ 1961, pp. 125 and 529 f.