Constitution of possession
The constitution of possession ( Latin: constitutum possessorium ) is a special agreement for the acquisition of ownership of movable property according to German property law . According to BGB it consists in the fact that the seller is and remains in possession of the thing . Instead of a handover, a property brokerage relationship is agreed in accordance with BGB, which replaces the handover (so-called handover surrogate ). The seller and buyer agree that the seller will henceforth own the item as a direct third-party owner for the buyer and that the buyer will become the owner provided that he only exercises indirect ownership .
The constitution of property is first mentioned in early classical Roman law at Javolen , of which the case is reported that someone rented an object from the owner, which he demanded of a usufructuary. Nonetheless, Celsus is often the first to be regarded as the author of the constitutum possessorium , where it becomes clear that the former owner exercises the property as procurator for the purchaser. Further passages can be found in Marcellus , Papinian and Paulus .
The constitution of possession is primarily used for loan collateral under banking law . The banks have no interest in keeping the thing in direct possession and instead let the borrower use the thing and do business with it. Since the guarantor remains the immediate owner, the principle of publicity that dominates property law is broken. Example: A buys a car. He transfers this by means of a constitution of ownership to his credit-granting bank, which, as the fiduciary owner, lends him the vehicle. So A can use the car. However, if his credit goes bad , the bank, as the owner, may demand the car back and sell it.
Statutory and contractual constitutes of ownership
A distinction is made between legal and contractual ownership arrangements. In the legal form of the constitution of possession, this construction is provided for by the law. This includes marriage within the meaning of the German Civil Code , insofar as a thing is to be transferred between the spouses. Hans Josef Wieling takes a different view , for whom the existence of marriage alone cannot mediate any means of ownership. Contractual ownership relationships come about by agreement.
In both cases, the term transfer surrogates is used, because the transfer of the item is replaced by the agreement of the ownership mediation according to sentence 1, BGB. In the execution, the disposer becomes the direct third-party owner, the purchaser becomes an indirect owner.
Simple and anticipated constitutes of possession
The simple constitution of possession requires at least immediate possession of the security provider at the time of transfer. However, there are cases in which it is not available, but can be anticipated. Anticipated (anticipated) constitution of ownership is recognized in case law and applies where the security provider is not yet the owner, but is to become the owner later. The focus is on moving forward the agreement on the transfer of ownership as security so that this is no longer required when the property is later acquired. This means that the declaration of agreement on the transfer of ownership and the agreement on the mediation of ownership can also extend to goods arriving at a later date. Even items can be assigned as security that have not yet been paid for in full by the security provider, which is why they are delivered under retention of title . The conditional buyer is faced with an expectant right , which becomes a full right when the purchase price is paid in full. As part of a transfer by way of security, this expectant right can be transferred to a bank as security, provided it is not encumbered with statutory liens (e.g. liability for accessories or landlord's lien ).
Doctrine and jurisprudence have developed this type of constitution of ownership, so that it has now become a recognized construct for the security transfer of warehouses with changing stocks. Things to be produced or created later can also be transferred by way of the anticipated constitution of possession.
- Digest 18.104.22.168
- Digest February 41, 2018 pr.
- Max Kaser : Roman legal sources and applied legal method. in: Research on Roman Law Volume 36. Verlag Böhlau, Vienna, Cologne, Graz, 1986. ISBN 3-205-05001-0 . P. 295-300 (with reference to the digests D. 41.2.19 pr. (Marcell. 17 dig.) And D. 41.2.48 (Pap. 10 resp.)).
- BGH, judgment of January 31, 1979, Az. VIII ZR 93/78, full text = NJW 1979, 976.
- Hans Josef Wieling: Property law: property, possession and rights to movable property , 2006, ISBN 354029869X , p. 312.
- RGZ 140, 223, 231 of April 4, 1933 and later BGH, judgment of April 29, 1958, Az. VIII ZR 211/57, full text = NJW 1958, 945.