The term real agreement was not originally intended when the BGB was established , but was then introduced by the second commission and replaced the terminology of the real contract , which in turn was ultimately not reflected in the text of the BGB.
The attribute "in rem" indicates that it is a matter of a property law settlement process that leads to a real contract. This agreement in rem is to be distinguished from the agreement (under the law of obligations) because the latter cannot bring about a change in the law in rem. The agreement in rem is subject to the provisions of the general part of the German Civil Code (BGB) , but only affects the rights in rem .
Content and scope
The agreement in rem contains the seller's declaration that he intends to transfer his property to the purchaser and the purchaser's declaration that he intends to acquire property. This also applies to encumbrances on property through liens or mortgages . The declarations of intent on which a real agreement is based are limited to bringing about the effects of the disposition (transfer or encumbrance of ownership), the subject matter of the disposition and the parties to the disposition transaction (so-called minimum consensus under disposition law ). The real agreement is usually reached when handing over the property or when agreeing a constitution of ownership , but it can also be anticipated (anticipated) in order to transfer property that the seller does not yet have. As a legal transaction with abstract content, it only contains the effects of the disposition (transfer, encumbrance or cancellation), while the purpose results from the obligation transaction ( purchase contract , donation , establishment of land charges ). An agreement in rem is required in the context of the disposition transaction in the case of transfer of ownership, establishment of land charges and pledging.
Prerequisites for effectiveness and lack of agreement
For a real agreement to be legally valid, it is first necessary to be certain of the item concerned, according to which it must be clear to everyone which specific items are to be assigned or encumbered. When it comes to movable property, the real agreement does not require any special form . A real agreement can be linked to a condition ( BGB) such as retention of title or a time limit .
Since the agreement in rem is a legal transaction , the content of the agreement is subject to interpretation . Explanations are open to interpretation if they are ambiguous and need to be interpreted if the declaring parties claim different understandings for themselves. If the related declarations of intent do not match or if not all points of a contract are conclusively regulated, there is a lack of agreement . This includes open ( BGB) and hidden dissent ( BGB). As for the agreement underlying declarations capacity of the declarant is required, there are also several ineffectiveness reasons . A declaration of intent and thus an agreement can be void due to legal incapacity ( BGB), violation of a legal prohibition ( BGB), immorality ( para. 1 BGB) or contestation ( para. 1 BGB) . Real transfers are value-neutral, but if protective regulations are deliberately circumvented, this value-neutrality is canceled, so that a real agreement can be immoral.
A real agreement is not binding, but can be unilaterally revoked by either side until the handover, since it is not obligatory, but "works". However, the revocation must also reach the other contractual partner. A revocability of the agreement for movable objects can also be inferred from certification of the real agreement.BGB (“agree”). For this reason, a test of “unity” is required at the handover. A binding effect occurs according to Abs. 2 BGB with notarial
Agreement and handover
According to transaction consists in addition to the actual act of handover from the agreement on the transfer of ownership. This agreement in rem forms the contract in rem , which allows a change in law to occur. Disposal transactions then change the legal situation in rem by establishing, transferring, changing or canceling a right. Agreement, handover or handover surrogate are mandatory prerequisites for a change in law in the case of movable objects. This also applies to the subscription agreement for securities . If the purchaser is already the owner , a mere agreement in rem is sufficient according to sentence 2 BGB. By agreement and transfer can in good faith also by non-entitled property be acquired, a bona fide rights protection comes after the to , , , BGB and HGB in question.sentence 1 BGB, a disposition
In the case of real estate and rights equivalent to real estate, the agreement in rem between the seller and the purchaser is called abandonment ( (1) BGB). Formally, GBO provides for proof of agreement between the parties involved. In addition to the conveyance, the disposal transaction also includes the entry in the land register . Since entries in the land register are possible at least in the form of notarial certification , the conveyance is also form-bound. If the entry is made without a previous sufficient real agreement, the land register is incorrect. The conveyance is unconditional ( (2) BGB).
- Hans Hermann Seiler : History and the present in civil law. Fundamentals of Property Law , Heymanns, Cologne 2005, ISBN = 978-3-452-25387-3, p. 244 ff.
- Benno Mugdan : The entire material on the civil code for the German Empire . Edited and edited by B. Mugdan, Kammergerichtsrath, 6 volumes, R. v. Decker's Verlag, Berlin 1899, Volume III, 4 f.
- Harm Peter Westermann / Dieter Eickmann / Karl-Heinz Gursky : Sachrecht , 2011, p. 308 ff.
- Jürgen Oechsler in MünchKomm : BGB , 5th edition, 2009, § 929 BGB, Rn. 24
- Harm Peter Westermann: BGB Property Law , 2012, § 5 Rn. 125, 126
- BGH, judgment of November 14, 1977, Az. VIII ZR 66/76, full text = NJW 1978, 696.
- Wolfgang Brehm / Christian Berger: Sachrecht , 2006, p. 174.