Owner-owner relationship

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The owner-owner relationship , often referred to as EBV for short , is a legal relationship regulated in § 987 ff. BGB . It always exists when ownership and possession of something fall apart and the owner is not entitled to possession. The legal regulations made for this go back in their origins to Roman antiquity and, then as now, primarily served to protect the owner . You give him independent claims to damages and compensation for use , which the in rem claim for the § 985 draw near BGB. In contrast to the Romans, the owner-owner relationship today is designed as a debt relationship that is also intended to enable a balance with the interests of the owner. To this end, the law endows the owner with use of compensation claims made.

History of origin

Today's legal regulations were developed by representatives of the Romanesque tradition of the historical school of law , who, in the person of Bernhard Windscheid, contributed to the preparatory work on the German Civil Code (BGB) . However, they fell back on models of common law , which in turn had been developed from the received Roman law .

Roman law already differentiated between property and possession and granted the (albeit Quiritic ) owner a lawsuit with which he could demand his thing from the owner, the rei vindicatio . However, this action alone could pursue the surrender of the matter. The so-called actio in rem only granted access to the matter itself. If the owner sold the property on or if it was destroyed, this action would consequently fail. The classical Roman law therefore developed the rule that the owner of assets moderately is always to make as if he had already received the matter to joinder back. From this point on, the owner was liable for the impossibility of surrendering the item. On the other hand, in order to protect the owner who had invested in the matter, he was given the procedural defense of a defense . By means of the exceptio doli he was able to refuse to surrender the matter. The Romans later extended these liability rules to the bad faith owner , who, although not yet sued, knew that he was obliged to surrender the property due to a lack of ownership.

In common law, property was generally upgraded. In this context, the Roman rules on the relationship between owner and owner were understood primarily as a limitation of the liability of the owner in good faith and without complaint. This should be treated as if he had neglected his own cause ( diligentia quam in suis ).

The function of the rules on the owner-owner relationship in the BGB was controversial in the deliberations of both commissions . Decisive for the differences was the question of which legal situation would exist without §§ 987 ff. BGB. Some of the panellists believed that unlawful possession was, in and of itself, a tort offense . Since, according to § § 987 ff. BGB, only the sued and bad faith owner should be liable, this faction of the commission members understood the rules on the owner-owner relationship in accordance with the legal situation in common law as a liability privilege of the bona fide and unauthorized owner. Others, however, did not see illegal possession as a crime. In their opinion, liability would only have arisen from §§ 987 ff. BGB, so that it had to be viewed as an aggravation of liability.


This debate about the function of §§ 987 ff. BGB continues in jurisprudence to this day. The currently prevailing opinion sees in them a liability privilege for the unauthorized and honest owner, at least as far as he keeps within the scope of his property rights. A minor opinion , however, differentiates between §§ 987–993 and §§ 994–1003 BGB. The former should therefore privilege the owner, the latter the owner. In view of the changeable historical development and the differences in the deliberations on the BGB, a mediating position emphasizes that no uniform purpose of the EBV regulations can be identified at all.

scope of application

As ancillary and counterclaims, Sections 987 ff. BGB are only applicable if the owner does not have a right of possession within the meaning of Section 986 BGB against a request for surrender by the owner at the time of the event to be assessed , the so-called vindication situation .

Due to assumed contradictions in valuation, highly controversial exceptions to this basic rule are postulated again and again. The most prominent of these constellations is the application in the case of third-party excess (also “ not-so-authorized owner ”) , which the Federal Court of Justice decidedly rejected . It is characteristic of this constellation that the owner has a right of ownership, but that he exceeds this when exercising ownership. For example, the tenant of a rented apartment is allowed to live in it for contractual reasons, but according to §§ 987 ff. BGB he is liable for setting it ablaze in violation of his property rights. In the case of excess boom , a special case of the "not-so-entitled" owner, the BGH nonetheless accepts such an exception. In this constellation, the violation of the right of possession lies in the fact that an owner who exercises property for another (so-called third - party property) behaves like an owner and thus like an owner , for example by reselling the thing. Occasionally the BGH even applied EBV law to cases in which there was a right of ownership, but this resulted from a legal relationship without detailed regulation on the balance of interests.

In jurisprudence it is also very controversial whether the claims from §§ 987 ff. BGB are excluded by other surrender claims. The affirmative position is based on Heinrich Siber and Ludwig Raiser 's doctrine of the subsidiarity of vindication . According to this, the right to surrender under Section 985 of the German Civil Code (BGB) is subordinate to other claims, from which it then follows that the ancillary and counterclaims from Section 987 et seq. Most representatives of jurisprudence and jurisprudence have not followed this view and therefore assume that §§ 987 ff. BGB can appear alongside other claims if there was a vindication situation at the time in question.

Claims from the EBV

As soon as there is an owner-owner relationship, Sections 987 ff. BGB order a tiered liability system. This differentiates both the liability of the owner and that of the owner according to whether the owner was honest. As in Roman law, the owner lacks this honesty if he was either sued at the time in question or else in bad faith.

Honesty criterion

The central norm for assessing the honesty of the owner is Section 990 (1) BGB. This refers terminologically ("not in good faith") to Section 932 (2) BGB and differentiates in terms of time in such a way that an owner is considered dishonest if he

  1. knew at the time of the acquisition of ownership or grossly negligently misjudged that he has no right of ownership (sentence 1).
  2. learns at a later point in time than that of acquiring ownership that he is not entitled to possession (sentence 2).

However, the case law makes an exception to this in the event of an upswing, since both types of property are fundamentally different. In doing so, the BGH referred to the doctrine of property rights developed by Friedrich Carl von Savigny from Roman law. According to the Roman ius honorarium , which was valid up to the Diocletian era , property was only legally protected if there was a corresponding legal basis (so-called causa possendi ), which did not apply if the type of property was changed without authorization. This dogmatics was not adopted in the BGB, which is why the position of the BGH did not go unchallenged. Representatives of the position of the BGH therefore mainly point out today that the person converting his property can be expected to reflect on his property right.

Liability of the owner

The liability of the owner is regulated in §§ 987-993. A distinction is made between three levels:

Honest owner

An owner cannot assert any claims for damages against an honest, i.e. uncontested and bona fide owner. If the owner has acquired possession free of charge, he must, however, surrender the uses drawn according to § 988 BGB according to the rules of the law of enrichment . This means that according to Section 818 (3) of the German Civil Code (BGB) only has to give out what he actually still has. If the owner has obtained possession for a fee, he has according to In accordance with Section 993 (1) of the German Civil Code (BGB), only to surrender so-called oversized fruits, i.e. those fruits that were not obtained according to the rules of proper economy.

Dishonest owner

An owner who is sued for the surrender or who is in bad faith is liable according to § 989 BGB for damages for the impossibility of surrendering the item for which he is responsible. According to Section 987, Paragraph 1 of the German Civil Code (BGB), he must also surrender all drawn uses and, according to Section 2, replace any uses that have not been drawn.

Delict owner

A special liability norm can be found in Section 992 of the German Civil Code (BGB) for those owners who have obtained possession through prohibited personal power or through a criminal act . In addition to §§ 987, 989 BGB, the general liability rules, in particular § 823 Paragraph 1 BGB , also apply to him .

Liability of the owner

The liability of the owner is regulated in §§ 994-1003. There are only two different levels:

Honest owner

The honest owner can demand reimbursement of all necessary uses in accordance with § 994 Paragraph 1 BGB , as long as these are not normal maintenance costs. Section 996 of the BGB also grants him the right to compensation for other uses, provided that they increase the value of the item at the time the owner asserts the claim for surrender. With regard to other things connected with the thing, Section 997 grants the owner a right of removal.

Dishonest owner

In contrast, a dishonest owner to § 994 para. 2 BGB only under the rules of the law of agency without authority replacement demand necessary uses. This means that in accordance with Section 683 of the German Civil Code (BGB), he receives compensation for those uses that correspond to the will and interests of the owner. If, on the other hand, the uses did not correspond to the owner's interest or will, his claim for compensation is limited according to § 684 according to the rules of the law of enrichment. Pursuant to Section 818 (3) BGB, the owner can only demand from the owner what is left of the increase in value. With regard to other things connected with the thing, Section 997 grants the owner a right of removal.

Claims Enforceability Limitations

According to § 1000 , the owner can hold his claims for compensation against a surrender request by the owner. This is justified by the limitation of the enforceability of the claims for compensation in § § 1001 f. BGB. According to this, the owner can only claim compensation for use if the owner has recovered the item or approves the uses. if the owner does not approve the uses, the owner can satisfy himself according to § 1003 BGB.

Exclusivity dogma

The special liability regulations of §§ 987 ff. BGB would have practically no consequences if the other liability regulations of the BGB were also applicable. Therefore § 993 Abs. 1 Hs. 2 BGB orders on the one hand that the owner is otherwise "neither obliged to surrender of uses nor to pay damages". On the other hand, according to Section 996 of the German Civil Code (BGB) , he can also demand compensation for use from the owner “only to the extent that he was honest at the time.


This regulation is described by the prevailing opinion as the dogma of exclusivity and understood as a far-reaching exclusion of the application of the rules of the law of enrichment and tort law . The owner cannot therefore assert any conditional claims against an honest owner with regard to drawn uses . Nor can he assert the general claims for damages under tort law, unless Section 992 of the German Civil Code (BGB) applies as an exception for the tortious owner . On the other hand, according to the prevailing opinion, the owner cannot base any claims for compensation on the basis of enrichment law or on § 951 BGB.

This regulation is repeatedly criticized as being too simple for a meaningful liability system.


Therefore, jurisprudence and teaching want to allow a number of further exceptions, the possibility and scope of which are very controversial in detail. According to the prevailing opinion, the exclusion of conditional claims of the owner should not apply with regard to the thing itself and its surrogates . The owner can therefore assert claims for enrichment in particular if the owner has consumed , sold, processed , mixed or inseparably connected the item with another item .

According to the prevailing opinion, § 826 BGB - despite the restrictions of § 993 BGB - is applicable as a claim for damages (of the owner). It concerns claims for damages due to intentional immoral damage. According to the prevailing opinion, tortious claims should not be excluded in the case of the so-called third - party excess . In academic legal theory in particular , further applicability of tort law is required in addition to §§ 987 ff. BGB or the exclusivity dogma is completely rejected in this respect.

The prevailing opinion has so far assumed that §§ 994 ff. BGB will have a final effect with regard to the owner's claims for compensation. However, representatives of jurisprudence also oppose this, as they recognize a contradiction in valuation in that whoever makes uses without being the owner can demand these stats to be replaced.


The rules on the owner-owner relationship are repeatedly criticized by jurisprudence for their complexity and lack of clarity, which is based on the numerous controversial individual questions. So far, however, there is no widely discussed suggestion for improvement.

Swiss law

The Swiss law does not regulate the relationship between the owner and the owner explicitly. However, a comparable institute regulates the legal relationship between the person entitled to property and the current owner. The law differentiates between the owner in good faith and in bad faith. The owner in good faith is not liable to the entitled person according to Art. 938 ZGB if he uses the thing in accordance with his presumed right, even if the thing perishes or suffers damage. He can demand compensation for necessary and useful expenses (Art. 939 ZGB). He can also demand the reimbursement of the purchase price paid (to a third party) if the item has been publicly auctioned or on the market or has been transferred by a merchant who deals in goods of the same type (Art. 934 ZGB). The bad faith owner has to compensate the entitled person for all damage caused by the withholding as well as for the obtained or missed fruit (Art. 941 ZGB Abs. 1). He can only demand reimbursement for expenses if such would also have been necessary for the beneficiary (Art. 941 ZGB, Paragraph 2). If he has acquired the item from a third party, the purchase price will not be refunded. If the owner in bad faith does not know to whom the item is to be returned, he is only liable for the damage he is responsible for (Art. 940 Para. 3 ZGB).

Liechtenstein law

In the Principality of Liechtenstein , parts of the provisions with regard to the owner-owner relationship were taken from the Austrian ABGB in 1812 and then partially repealed in 1923 and regulated in the then new Code of Property Law (SR), which was mainly taken from the ZGB.

In Liechtenstein, there has so far been a mixed situation that has not yet been dealt with scientifically and by the case law with regard to the provisions of the Liechtenstein General Civil Code , the SR and the ADHGB .


German law

  • Carsten Thomas Ebenroth / Zeppernick: Use and damage claims in the owner-owner relationship , in: JuS 1999, p. 209 ff.
  • Volker Emmerich : The relationship between the side effects of the vindication and other claims , dissertation, Saarbrücken 1966.
  • Ursula Köbl: The owner-owner relationship in the claims system of the BGB: at the same time contribution to competition theory , Duncker u. Humblot, Erlangen 1971.
  • Winfried Pinger : Function and dogmatic classification of the owner-owner relationship: §§ 987-1003 as mutually aggravating liability , volumes 33-35, Beck 1975.
  • Winfried Pinger: The legal nature of §§ 987 to 1003 BGB , in: MDR 1974, 1S. 84 ff.
  • H. Roth: The owner-owner relationship , in: JuS 2003, p. 937 ff.
  • Heinrich Stutz, The Legal Relationship of the Owner to the Unauthorized Owner , Heidelberg 1933.
  • Dirk A. Verse , Uses in the owner-owner relationship. A critical view from a historical and comparative legal perspective , Tübingen 1999.

Liechtenstein law

Swiss law

  • Emil W. Starkm Berner Commentary, Vol. IV / 3/1 , Property Law, Property , Art. 919–941 ZGB, Bern 2001.

Individual evidence

  1. Max Kaser , Roman Private Law , Vol. 1, 2nd ed., 1971, § 103 I 5.
  2. Max Kaser, Römisches Privatrecht , Vol. 2, 2nd ed., 1975, § 245 II 4.
  3. Thomas Rüfner , possession , in: hand dictionary of European private law , 2009, p. 196 f.
  4. cf. Bernhard Windscheid / Theodor Kipp , Pandektenrecht , 9th edition. 1906, I § 194.
  5. Motifs for the draft of a civil code for the German Reich II , p. 394 ff .; Minutes of the commission for the second reading of the draft Civil Code III , p. 340.
  6. Motives for the draft of a civil code for the German Reich III , p. 394.
  7. Dieter Medicus / Jens Petersen , Civil Law , Rn. 574.
  8. a b Winfried Pinger , Function and Dogmatic Classification of the Owner-Owner Relationship , 1973, p. 8 ff.
  9. Christian Baldus , MüKo BGB , 2013, before §§ 987-1003 Rn. 8th.
  10. BGH, NJW 2002, p. 60
  11. a b BGHZ 31, 129 , so-called Reichseisenbahnfeldlokomotivenfall
  12. BGH, NJW 2002, p. 1050.
  13. Ludwig Raiser, JZ 1961, p. 529.
  14. Basically BGHZ 34, 122 (123).
  15. Christian Baldus, MüKo BGB , 2013, § 990 Rn. 3.
  16. Christian Baldus, MüKo BGB , 2013, § 990 Rn. 17th
  17. Richard Böhr , The Prohibition of Unauthorized Conversion of Property in Roman Private Law , Munich 2002.
  18. Peter Bassenge , Palandt , 2012, before Section 987 Rn. 11.
  19. Christian Baldus, MüKo BGB , 2013, § 990 Rn. 13.
  20. Hanns Prütting , Property Law , Munich 2014, § 48 III 2; Hans Josef Wieling , Property Law , Berlin 2007, § 12 IV 9.
  21. BGHZ 56, 73 (77); RGZ 163, 348 ; Peter Bassenge, Palandt 2012, before Section 987 marginal no. 16.
  22. OLG Dresden, MDR 1999, p. 539; BGHZ 39, 186
  23. BGHZ 14, 7 ; BGHZ 55, 176 (178); RGZ 163, 348 (353); Peter Bassenge, Palandt , 2012, before Section 987 marginal no. 15th
  24. Christian Baldus, MüKo BGB , 2013, § 993 Rn. 12.
  25. Peter Bassenge, Palandt , 2012, before Section 987 Rn. 19th
  26. BGHZ 46, 146 ; RGZ 157, 132 (135); Peter Bassenge, Palandt , 2012, § 993 Rn. 4th
  27. Hans Brox , JZ 1965, p. 519 f .; Wolfgang Hefermehl , Erman - BGB , 2000, before §§ 987–993 Rn. 19 ff.
  28. Winfried Pinger, Function and Dogmatic Classification of the Owner-Owner Relationship , 1973, pp. 70 ff.
  29. Winfried Pinger, Function and Dogmatic Classification of the Owner-Owner Relationship , 1973, pp. 103 ff .; Dieter Medicus , MüKo BGB , 4th edition, 2004, § 996 Rn. 11 f.
  30. Winfried Pinger, Function and Dogmatic Classification of the Owner-Owner Relationship , 1973, p. 1 f. with further evidence.
  31. Overview in Klaus Vieweg / Almuth Werner , Sachrecht , 2011, §§ 7, 8.
  32. See: Antonius Opilio , Working Commentary on Liechtenstein Property Law, Volume I, EDITION EUROPA Verlag, 2009; Comments on: Art 42, fn. 2; Art 498, margin no.12; Art 502, margin no.19.