Transfer of ownership
Under assignment (or transfer of ownership ) are understood in property law , the legal transaction transferring the ownership of a thing from one person to another. The transfer of ownership is therefore a disposition . In Austria and Switzerland the term sale is also used, in Germany the terms are not congruent.
Transfer of movable property
The transfer of ownership of movable property (Fahrnis) is regulated in § § 929 ff. BGB .
Acquisition from the beneficiary
Movable property is transferred through agreement and handover. A mere agreement of will between the contracting parties (agreement) is not sufficient, but the transfer of ownership must be recognized externally by means of a real act (handover). The agreement with the authorized person is the same as the agreement with the non- authorized person authorized according to § 185 BGB .
German law
agreement
Agreement refers to the agreement of the content of the declarations of intent of the seller and the purchaser aimed at the transfer. In the case of moveable items , the agreement is not subject to any special form and can be revoked at any time until handover (reverse conclusion from § 873 Paragraph 2 BGB and § 956 Paragraph 1 Sentence 2 BGB) or only declared under conditions (→ retention of title ).
handing over
Surrender is the loss of any form of property at the seller in connection with the acquisition of any form of property at the buyer at the instigation of the seller. As a rule, ownership is granted by providing direct ownership . If the purchaser is already in possession of the thing (for example because he had previously rented or borrowed it), it is sufficient in accordance with § 929 sentence 2 BGB the mere agreement. One speaks then of the transfer of ownership (lat. Brevi manu traditio ). If the seller wishes to retain ownership (→ transfer by way of security ; financing through sale-lease-back procedure), he must provide the buyer with indirect ownership by agreeing a constitution of ownership ( e.g. loan agreement for transfer by way of security or "leasing" contract for re-lease sale) Procure possession ; he himself remains the immediate owner, cf. § 868 BGB. If the item is in the possession of a third party (for example because the seller has loaned it), the transfer of the claim against the third party takes the place of the transfer , § 931 BGB.
Handover is also considered to be if the seller has no property and instructs the immediate owner to provide the direct property to the purchaser and the immediate owner does this (so-called bidding ).
French law
The French Civil Code does not differentiate between obligatory business and disposition business . According to Art. 1196 para. 1 C. civ. is the property of a thing always been with the contract on the parties but which gem. Art. 1196 para. 2 F. 1 C. civ. can deviate by an agreed retention of title .
Exceptions to the automatic transfer of ownership can also be made according to Art. 1196 para. 2 F. 2 C. civ. lie in the nature of the thing: the transfer of ownership for things that will arise in the future (e.g. yield from a harvest) will not take place until the thing has arisen. The law can also Article 1196 para. 2 F. 3 C. civ. Provide exceptions, which is the case, for example, with a generic debt : acc. Art. 1585 Hs. 1 C. civ. ownership is only transferred when it is specified by weighing, counting or measuring.
In French law, the point in time of the transfer of ownership is particularly important for accidental loss , which according to Art. 1196, Paragraph 3, Clause 1 C. civ. is generally credited to the owner.
Acquisition from unauthorized persons
German law
In Germany , purchase in good faith by unauthorized persons is regulated in Sections 932–936 BGB.
Austrian law
In Austria , § 367 ABGB regulates the purchase in good faith by unauthorized persons .
Dutch law
In the Burgerlijk Wetboek (BW), the acquisition of ownership of movable property is mainly based on Article 3:86 BW. As in German law, surrender (Art. 3:90 ff. BW) and good faith (Art. 3:11 BW) are required. If the thing is handed over free of charge, i.e. without consideration, the acquisition of property in good faith is excluded under Dutch law (Art. 3:86 para. 1 BW). Even an inappropriate consideration such as a symbolic euro excludes the transfer of ownership. The threshold is seen at around 50% of the actual acquisition.
French law
In the Civil Code , Art. 1599 C. civ. suggest that the sale of someone else's item to a bona fide buyer ( acquéreur de bonne foi ) can lead to claims for damages by the original owner. Although the standard speaks of ineffectiveness , the right of avoidance is only available to the buyer (so-called nullité relative ).
Transfer of immovable property
The transfer of immovable property ( land and condominiums ) is based on § 873 , § 925 ff. BGB.
Acquisition from the beneficiary
The transfer of ownership of real estate takes place by means of a formal agreement that is unfair to conditions (here called relinquishment ) and entry in the land register . The entry in the land register has the same meaning in the case of immovable property as the real act of handover in the case of movable property.
Acquisition from unauthorized persons
Also plots can from parties effectively property be acquired if the content of the land register is incorrect, for the good faith in the correctness of the land register is protected in the legal transaction assistance.
Good faith
Good faith in the correctness of the land register § 892 BGB and thus in the ownership of the seller is excluded if an objection to the correctness of the land register has been entered or the purchaser is aware of the incorrectness. In contrast to the acquisition of movable property from an unauthorized person, grossly negligent ignorance does not do any harm under German law. The honesty of the purchaser is presumed. In the event of a dispute, the true entitled person must prove dishonesty.
Legal certificate due to incorrect land register
The good faith in the correctness of the land register with regard to the existence of the rights registered there and the non-existence of unregistered or deleted, registrable real rights and disposal restrictions is protected . Belief in actual information in the land register (such as the size or type of property), the personal circumstances of those involved (such as occupation and age of the owner) and the non-existence of non-registrable rights (in particular public-law encumbrances) are not protected.
Other states
France
In French private law , the transfer of real estate takes place on the basis of an informal agreement that is regularly part of the purchase contract. A separation between contractual obligations (purchase contract) and disposals in rem (agreement in rem), as required by German civil law, is not necessary in France (so-called causal principle ). The buyer acquires ownership of the property by virtue of the purchase contract. An entry in the land register can be done voluntarily, but is not a mandatory requirement.
Italy
In Italy, the transfer of real estate takes place on the basis of a formal (written) sales contract (i.e. the causal principle ). The principle of separation and abstraction is also not known. The entry in the land register serves only to prevent a bona fide acquisition by the unauthorized person.
Great Britain
In regions in which there is a so-called property register, entry in such a property is a mandatory acquisition requirement when purchasing property. In the regions (mostly rural areas) where there is no register, the purchaser must the seller is a private agreement , either sealed or signed in front of witnesses deed of conveyance ( deed of conveyance itemizing). It is then officially checked whether the seller is authorized to dispose ( investigation of title ). Only when this review process has been completed does the buyer acquire ownership of the property.
