Real claim

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In jurisprudence , according to the general opinion, real claims denote claims that arise from a real right and serve to implement it. This is how property is realized when the owner is granted possession in accordance with Section 985 of the German Civil Code . If the exercise of the right in rem is impaired by a third party, the owner of the right in rem can use the claim in rem from Section 1004BGB demand trouble-free use. Since other property law claims, nonetheless non-real claims, can result from real rights, the view is sometimes taken that real claims are based on real claims in their capacity as rights of control . Accordingly, claims in rem are to be understood as auxiliary rights that serve to enforce the rights in rem as rights of control; this with the aim of "interference suppression".

In contrast to the obligation under the law of obligations, which entitles and obliges the claimant and the opposing party as persons, the claim in rem only entitles the current owner of the impaired right in rem, so that the person who loses his right in rem also loses the claim in rem. If the impaired right in rem is transferred, the claim in rem arises anew with the new owner of the right in rem.

Classification of claims in rem

The real claims are generally divided into claims which are aimed at surrender , removal and omission and which are aimed at satisfaction from a (pledged) object. The right of usufruct is also included. Most of the claims derive from the right to possession , not from actual possession itself.

Surrender claims

Some of the claims to surrender are of a petitarian nature, so they follow a “right to possession” . In this capacity they finally create justice. This includes the prototype of the right to surrender according to § 985 , the provision of usufruct law referring to the norm of § 1065 and the lien protection rule of § 1227 BGB. In the case of mortgages, on the other hand, there are no correlating regulations, because they do not entitle you to possession, but only to realization if the requirements are met. Section 985 BGB is accompanied by the subsequent claims of Sections 987 ff. BGB which are not in rem. These can be separated from property. The same applies to §§ 1065, 1227 and § 1007 BGB.

There are also claims of a possessorial nature. They are derived from a “right from possession” . Possessional claims can only create provisional law, because the legal situation changes as soon as a right to property is exercised. The § 861 BGB is therefore only directed against the factual deprivation of property. § 861 BGB therefore does not regulate any follow-up regulations in the annex.

Closer to the petitorial claims are the property disturbance claims against the previous owner in accordance with § 1007 BGB and the inheritance owner in accordance with § 2018 BGB, as in contrast to § 861 BGB as a possessorial claim, the property relations are finally sorted out. For § 2018 BGB, separate follow-up rules apply with § § 2019 ff. BGB. For § 1007 BGB (claims of the previous owner) unauthorized possession of the obligee is sufficient, whereby good faith in the right of possession must exist. He is not in good faith and therefore in bad faith if he knows or is unknown as a result of gross negligence that he has no right to possession .

Elimination and injunctive relief

These claims serve to eliminate the consequences of disruptions that have already occurred and to ward off the risk of first-time and repeated disruptions that oblige us to refrain. A distinction is made between claims "from a right" according to § 12 , § 1004 , § 1065 , § 1134 paragraph 1, § 1192 paragraph 1 and § 1227 BGB and claims "from property / legal possession" according to § 862 , § 1029 , § 1090 paragraph 2 BGB.

Section 1004 of the BGB mostly deals with the question of non-material disturbances and their defense against the overall aesthetic impression of a thing. The Court thus denies caused financial losses , since the deterioration of the aesthetic feeling no resemblance to the scale forming effects of § 906 have paragraph 1 BGB. The literature counters this by saying that if the general right of personality is recognized, the protection of property should be expanded into the ideal.

Claims to satisfaction from an object

Satisfaction from a pledged item is subject to an effective lien on the part of the obligee. The basis for claims is Section 1113 (1), Section 1191 (1), Section 1199 (1) and Section 1204 (1) BGB. It is consistently no fault of the burdened object of the right holder, which is why there are no “real” claims in and of themselves. As pure exploitation rights, the liens only entitle the holder to auction the loan security in the initiated foreclosure proceedings . In jurisprudential literature it is therefore controversial whether they can even be regarded as rights in rem.

Security claims

These include the claims under usufruct law from § § 1051 ff. BGB ( § 1047 BGB). If the owner has to fear a significant violation of his rights, he can demand security from the entitled person, in the absence of judicial administration. These claims are also of a petitarian nature.

Peculiarities of real claims

No independent assignability

As a rule, real claims cannot be separated from the basic right (property, possession) by assignment. After h. M. it also changes the standard provision of § 931 BGB nothing, after which the claim for ceded can be. Because, so the argument goes: The provision does not refer to the surrender claim of § 985 BGB, but to the underlying property-mediation relationship . The vindication is not assigned, rather the transfer of ownership takes place through mere agreement . The binding of the real claim to the basic right is in contrast to the claims for damages from § 823 paragraph 1 BGB, because the injured party can assign the claim while keeping the thing himself, not the owner, who neither has the property nor the claim alone can dispose if he asks the owner to hand over the thing.

The law assumes that the binding of in rem claim to his tribe law in the case of assignment (§ § 398 et seq. BGB) the purchaser newly created and not passes . If the claim were to be passed over , it could be subject to objection at any time , because when the claim to surrender is transferred according to § § 412 f. BGB, the purchaser would have the objections of § 404 BGB. In fact, he doesn't regularly have them. Because the in rem claim with the purchaser of the ordinary law (property ownership) newly created, it is consistent to that objections of the owner be directed against the new owner, § 986 paragraph 2 BGB. The BGH has even extended rights of retention from § 273 BGB. In particular, the tenant protection provisions of § § 577 ff. BGB have considerable practical relevance in this context .

In order not to allow insurmountable difficulties due to inalienability to arise in the case of foreclosure , § 857 III ZPO regulates that an inalienable right can be subject to attachment in the absence of special provisions insofar as the exercise can be left to someone else. This is illustrated by the following case: A debtor wants to seize a valuable item from his debtor that is illegally in the possession of a third party who in turn is not ready to surrender. The creditor, who has claims against the owner as his debtor, but not against the owner who is unwilling to surrender, first needs a real claim for surrender, which in turn is held by the owner. After he has had § 985 BGB transferred to him by the owner / debtor via a seizure and transfer decision , according to § 857 III ZPO the surrender finally succeeds, because he is now left to exercise [as] someone else .

Inclusion of the law of obligations

In the area of ​​rights in rem, there is only very limited scope for other provisions on claims . The general rules of the law of obligations of the right of impossibility according to the regulations of § 275 and § 280 BGB are superseded by the subsequent regulations of § 989 , § 990 BGB. Since the vindication ceases to exist when the property expires, it does not matter for the surrender claim whether the debtor (defendant) is wealthy for surrender in the sense of the law of obligations. That should actually also apply to obligations to pay damages from § 283 BGB, which would also affect the bona fide owner regardless of his fault and which are prevented by §§ 989 ff. BGB (special regulations). Nevertheless, the BGH - in turning away from the whole h. M. - the law of obligations included in a request for surrender.

The scope of application of the claims law provisions on debtor default is broader . Section 990 (2) of the German Civil Code orders them to vindicate the dishonest owner. This has to compensate for the damage caused by culpable delays in surrender according to § 286 BGB. If the thing goes under during the delay (accidentally), he is also liable for it, § 287 sentence 2 BGB. The liability for default interest rules for mortgage § 1146 of the Civil Code and the mortgage § 1192 paragraph 1 BGB. Whether further damage caused by default can be asserted from the right to claim is disputed, at least probably not covered by § 1118 BGB, which only has the statutory default interest in mind.

Own disruption rules for real claims

Owner-owner relationship

According to § 985 BGB, the primary right to surrender expires if the debtor gives up possession. But it is not completely free. The owner owners ratio , according to § § 987 nor subsequent claims ff. BGB for damages and use publication time. They are not of a real nature and can be prosecuted separately from property as claims according to §§ 280, 823 paragraph 1 BGB.

Other claims in rem

It is disputed whether Sections 987 ff. BGB can also be applied to other real claims. This applies particularly in view of §§ 894, 1004 BGB. There is no instruction correlating with Section 1007 (3) BGB, according to which a claim is excluded if the previous owner was not in good faith when acquiring the property or if he has given up the property. The Reichsgericht already advocated an analogous application of Sections 987 ff. BGB in several decisions.

See also

literature

Individual evidence

  1. ↑ Philipp Heck : Outline of Property Law . 1930. Sections 31, 32.
  2. ↑ Hans Hermann Seiler : History and the present in civil law. Fundamentals of property law , Heymanns, Cologne 2005, ISBN = 978-3-452-25387-3, p. 242 f.
  3. ↑ in this sense: Karl-Heinz Gursky : Property Realization Claims , in Staudinger , preliminary 1 to §§ 985-1007.
  4. ↑ a b c d Dieter Medicus : Civil law . 19th edition Carl Heymanns Verlag, Cologne 2002, ISBN 3-452-24982-4 , § 19.
  5. ↑ BGHZ 51, 396 ff. (Building materials on the neighboring property)
  6. ↑ BGHZ 54, 56 f. (Scrap store on the neighboring property of a castle hotel)
  7. ↑ representative for several: Fritz Baur JZ 1969, 432; Wolfgang Grunsky JZ 1970, 785 ff.
  8. ↑ each representative, for it: Harry Westermann : Property Law , 5th edition 1966, with addendum 1973, as study edition 1974, § 94 II 4; on the other hand: Enneccerus - Kipp - Wolff : Textbook of civil law, property law , 10th edition 1957 by Martin Wolff and Ludwig Raiser , § 131, note 21.
  9. ^ Fritz Baur: Textbook of Property Law , 14th Edition, 1987. § 51 VI 1 b.
  10. ↑ BGHZ 64, 122 ff.
  11. ↑ BGHZ 53, 29 ff.
  12. ↑ affirmative: Harry Westermann: Property Law , 5th edition 1966, with Supplement 1973, when Study 1974 edition, §§ 94II 4 und101 II 1 b; In the negative: Enneccerus-Kipp-Wolff: Textbook of civil law, property law , 10th edition 1957 by Martin Wolff and Ludwig Raiser, § 131 III 3.
  13. ↑ RGZ 114, 266 ff; 158, 40 ff.