Real liability
To rem liability (or property liability ) is the German property law , if the owner of a thing whose exploitation because of the fact burdensome lien or a public burden (for land ) by the creditors tolerate must, without being at the same time (personal) debtor the creditor's claim must be.
General
The real liability of a thing is, according to substantive law and also procedural law, something completely different from the liability of a debtor under the law of obligations arising from loans . Because the borrower personally owes the repayment of the loan ( Section 488 (1) sentence 2 BGB ), the owner of a thing must tolerate the foreclosure of his encumbered thing ( Section 1147 BGB). In terms of procedural law, the obligee enforces the title from the credit claim according to § 304 ZPO , the tolerance title from mortgage liens according to § 865 ZPO.
Legal issues
Liability in rem only applies to security interests in rem such as liens (for land and rights equivalent to real property ) and liens (for movable property ) that are liable for the claims of a creditor who can access the security object by way of foreclosure if the debtor does not pay .
In the case of lien (both statutory lien and pledging ), the pledged object is liable for the debts on it ( Section 1204 (1) BGB). If the personal debtor does not meet his repayment obligation, the pledgee may sell the pledged property ( Section 1228 (1) BGB) and offset his claim with the proceeds from the sale.
In the land law which establish mortgage , mortgage and land charge (§ rem liability of the loaded with these liens Land § 1113 , § 1191 , § 1192 1a BGB.). In these cases there is also a real liability of the liability association for real estate liens, through which, in addition to the property, its essential components ( Section 1120 BGB), the property accessories ( Section 1120 BGB), the rent and lease claims (for rented or leased mortgage objects ; § 1123 BGB); Insurance compensation ( § 1127 BGB; in particular building insurance according to § 1128 BGB and other damage insurance according to § 1129 BGB) are also liable.
In the event of non-payment of the levies, public burdens trigger real liability for the property concerned. The tax code (AO) also distinguishes between personal and material liability . Personal liability (§ § 69 to § 75 AO) means that the liability debtor is personally responsible for the tax liability of a third party. Liability in rem according to § 76 AO ("material liability") means that goods subject to import and export duties - regardless of the rights of third parties - serve as security for the tax on them .
Legal consequences
Liability in rem is only latent until a court orders the compulsory auction or the compulsory administration of the pledged objects (§ § 20 , § 21 , § 146 , § 148 ZVG ). Then their owner, as the debtor or security provider, must tolerate the seizure and subsequent realization .
Individual evidence
- ^ BGH, judgment of September 19, 1986, Az .: V ZR 72/85 = BGHZ 98, 256
- ↑ Kurt Schellhammer, Property Law According to Claim Bases , 2017, p. 349
- ↑ Claudia Röder-Persson, The Privilege of the Public Property Burden in the Foreclosure Act in the Light of the Abolition of the Fiscal Bankruptcy Privilege , 2004, p. 68
- ↑ Kurt Schellhammer, Property Law According to Claim Basis , 2017, p. 402
- ↑ Dieter Birk / Marc Desens / Henning Tappe, Tax Law , 2015, Rn. 302
