Reservation of title (Germany)

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The retention of title is the transfer of ownership of a movable item under a condition precedent . It is used in sales law : By agreeing retention of title, the buyer is permitted to pay the purchase price in installments. Although the buyer does not acquire property until the purchase price has been paid in full, he may use the goods beforehand.

The retention of title is extremely common in business transactions and is therefore one of the most important means of securing loans . In German civil law, the retention of title is regulated in Section 449 of the German Civil Code (BGB).

function

The legislature designed the purchase contract as a selective exchange of the purchase price and the purchased item. Basically because no party is obligated to make advance, either party may their performance owed by § 320 paragraph 1 BGB retained until the other party is willing to provide their services. However, this often does not do justice to the interests of the parties: In commercial transactions, for example, the buyer often only generates the financial means with which he can pay the purchase price by using the purchased item. When selling higher value goods to private individuals, the latter are often financially unable to pay the entire purchase price immediately. So that sellers can still sell goods under these circumstances, they often agree with their customers that the purchase price can be paid in installments.

As a result, the seller hands over the goods to the buyer before paying the full purchase price so that he can use them. However, this carries the risk for the seller that the buyer does not pay the purchase price installments owed. Although in this case he can withdraw from the contract and demand the surrender of the item, he runs the risk that the item will lose value or even be consumed by the use of the buyer. In such cases, the law provides for compensation claims against the buyer. However, these develop only little practical value for the seller if the purchased item is enforced by the buyer or if the buyer becomes insolvent . Because in insolvency proceedings, claims under the law of obligations are usually only met to a fraction . The seller receives greater security through a real claim against the buyer.

The seller receives a real right by agreeing a right of lien in accordance with § 1204 BGB. However, according to Section 1205 of the German Civil Code (BGB), this requires that the seller remains in direct possession of the item until the secured purchase price claim has been paid. According to § 1253 Paragraph 1 Clause 1 BGB, the lien expires when the item is returned. Thus, the parties with a lien cannot realize their intention that the thing is handed over to the buyer before the purchase price is paid.

The parties can, however, agree that the real agreement, which is necessary for the transfer of ownership, is only made once the purchase price has been paid in full. Such an agreement would, however, run counter to the interests of the buyer, as he would only acquire a real right to the object of sale when the last installment was paid. Until then, he only had a contractual right to transfer ownership. However, this can be practically worthless in the event of the seller's bankruptcy. Therefore the buyer also has a need for a right in rem.

The agreement of retention of title is in the interests of the parties. Here, the seller gives the buyer possession of the purchased item, but initially does not transfer ownership. The transfer of ownership is linked to the payment of the full purchase price. However, the buyer acquires a title to property . This is a preliminary stage to the acquisition of property, which the buyer can already transfer to third parties. The economic value of this legal position increases with every installment payment.

Legal construction

According to § 433 Paragraph 1 Clause 1 BGB, the purchase contract obliges the seller to hand over the purchased item to the buyer and to transfer it. Until the seller fulfills this obligation, the buyer can refuse to pay the purchase price. If the parties wish to deviate from this basic rule, they must make an agreement by virtue of which the buyer is obliged to pay the purchase price in installments prior to the transfer of ownership. If the seller only makes the decision to agree to a retention of title after the conclusion of the purchase contract, he cannot unilaterally enforce this, as otherwise he would be in breach of the contract. Therefore, the buyer must agree to a change in the contract.

The transfer of ownership takes place on the basis of this agreement, which is based on the provisions on the legal acquisition of property, § 929 , § 930 and § 931 BGB. These norms require that the buyer and seller agree on the transfer of ownership . If the parties have agreed on retention of title, this agreement is made subject to the condition precedent ( Section 158 BGB) that the buyer pays the purchase price in full. As a result, the real agreement only becomes effective when payment has been made in full, so that the buyer does not acquire property until this point in time.

This structure of the retention of title indicates the sales law provision of § 449 BGB. According to paragraph 1 of this, in case of doubt it is to be assumed that a retention of title has been agreed if the seller reserves ownership until the purchase price has been paid. Section 449 (1) of the German Civil Code (BGB) only refers to movable property , i.e. not to land . This is because of land the construction of retention of title would not be possible: According to § 925 paragraph 2 BGB as can conveyance called agreement can not be placed under one condition on the transition of ownership of a property. Therefore, properties cannot be acquired under retention of title.

Often, the agreement of retention of title takes place within the framework of general terms and conditions (GTC). The validity of such an agreement requires that the terms and conditions are included in the contract. If a consumer is involved in the business, formal requirements may have to be observed, such as Section 305 (2) BGB or Section 492 (1) sentence 1 BGB. If both the seller and the buyer use terms and conditions, which occurs particularly in commercial transactions, there is the possibility that the seller's retention of title clause collides with a buyer's clause and thus has no effect due to a dissent . If this is the case, retention of title is still deemed to have been agreed if the buyer knows or needs to know that the seller is only willing to transfer ownership subject to retention of title.

If retention of title is not contractually agreed and the seller only declares that he only wishes to transfer ownership conditionally upon transfer of ownership, he does not commit a breach of contract if he agrees with the buyer to extend the original purchase contract to include a retention of title agreement.

Legal consequences

Obligatory law (purchase contract)

The seller can demand payment of the purchase price from the buyer according to § 433 paragraph 2 BGB. This entitlement is typically divided into installments that are due at regular time intervals. If the buyer of his obligation to pay a rate not after, the seller can from the contract to withdraw and the delivered goods to § 346 paragraph 1 BGB train to train challenge against repayment of the already paid installments. In principle, this presupposes that the seller has set the buyer a deadline for paying the amount owed, which has passed without success. Additional requirements exist in the context of consumer credit transactions .

According to § 216 Paragraph 2 Clause 2 BGB, the seller can also withdraw from the contract if his purchase price claim expires before the buyer pays all installments.

Material (reserved property)

Ownership assignment

The seller remains the owner of the purchased item until the purchase price has been paid in full. From the perspective of the conditional buyer there is therefore the risk that the seller will transfer the item to a third party, for example in accordance with §§ 929 sentence 1, 931 BGB. However, § 161 BGB protects the buyer from the consequences of such a breach of contract: According to § 161 paragraph 1 sentence 1 BGB, dispositions that would thwart his acquisition of property become ineffective because he creates the condition under which the assignment should be made to him. If the conditional buyer pays the full purchase price to the seller, any interim transfers of the conditional seller to third parties become ineffective, so that they do not prevent the conditional buyer from acquiring ownership. The buyer thus obtains a protected legal position within the scope of the retention of title, which is referred to in jurisprudence as an expectant right. Since this legal position is linked to the payment of the purchase price, it expires if the obligation to pay the purchase price expires through the termination of the purchase contract.

According to Section 161 (3) BGB, this protective effect is limited by the provisions on bona fide acquisition by unauthorized persons . Accordingly, a third party can deprive the buyer of his claim to ownership by acquiring ownership of the purchased item from the conditional seller in good faith. However, the overwhelming number of rules of good faith require that the thing be handed over to the purchaser. As a rule, the conditional buyer would have to surrender the item to the bona fide purchaser. The situation is different in the case of an acquisition in good faith according to § 934 Alternative 1 BGB, in which it is sufficient if the conditional seller assigns his claim to surrender, which he has from the purchase contract, to the purchaser. However, in this constellation, Section 936 (3) of the German Civil Code prevents the buyer's property entitlement from expiring. In practice, an entitlement to property can only rarely expire through acquisition in good faith.

The buyer does not acquire property until the full purchase price has been paid, which is why he is not allowed to dispose of the item as owner until then. In particular, he is not allowed to transfer ownership of the matter to third parties. Third parties can therefore only acquire property from the conditional buyer in good faith in accordance with Sections 932–934 BGB. However, the buyer may freely transfer his claim to ownership, since this is a legal position in the purchased item that is assigned to him alone.

foreclosure

If there is a foreclosure against the property of the buyer, the seller runs the risk of the thing being seized . This is possible because the executing bailiff is allowed to access the things that are in the debtor's custody. He does not check whether the debtor is actually the owner of the thing to be attached. The seller can, however, defend himself against the foreclosure of the purchase item by filing a third-party complaint according to Section 771 of the Code of Civil Procedure (ZPO). If he fails to do this and as a result the object of sale is used by auction, he can demand the surrender of the remaining purchase price installments from § 812 paragraph 1 sentence 1 alternative 2 BGB from the obligee who carried out the foreclosure , since the obligee has the property right of the The seller intervenes .

If, on the other hand, enforced against the property of the conditional seller, the conditional buyer can bring a third party objection action if the purchased item is in the custody of the seller, for example for the purpose of eliminating a material defect .

insolvency

The buyer will enter bankruptcy, which can liquidator to § 103 , paragraph 2 of the Insolvency Act choose whether he sticks to the contract of sale or rejects its fulfillment. If his decision is made on the first-mentioned option, the seller retains his right to payment of the purchase price, which according to § 55 paragraph 1 number 2 InsO is to be satisfied in advance as a mass liability before the simple insolvency claims .

If, on the other hand, the administrator refuses to fulfill the purchase contract, the conditional seller has the right to separate the goods according to Section 47 of the Insolvency Code. He can therefore ask the insolvency administrator to surrender the matter without being subject to the restrictions of the insolvency proceedings. In addition, he can register a claim for damages for non-performance of the contract as an insolvency claim on the table .

The position of the conditional property under insolvency law changes if the seller transfers the purchased item to a bank that finances the acquisition by the conditional buyer. The bank takes on the position of the conditional seller, but the conditional property only serves to secure a monetary claim. So their interest is that of a fuse holder , which according § 51 number 1 discard Insolvency Act, but only secretion entitled is. Therefore, the bank cannot demand the surrender of the purchased item, but only the preferential satisfaction of its purchase price claim.

If, on the other hand, the conditional seller falls into bankruptcy, the insolvency administrator can not refuse to fulfill the purchase contract in accordance with Section 107 (1) InsO. Therefore, the debtor can continue to acquire ownership of the purchased item by paying the outstanding installments.

Modifications of the simple retention of title

Extended reservation of title

Function and structure

The extended retention of title is intended to take into account the fact that, in particular, a commercial reserved buyer often only acquires the necessary funds to pay the purchase price by selling the purchased item. In order to enable the conditional buyer to do this, the conditional seller allows him to utilize the purchased item by agreeing an extended retention of title. This is done by granting an authorization to dispose of in accordance with Section 185 (1) BGB. A sale, however, resulted in the conditional seller losing his ownership of the purchased item and thus his security. Therefore, this leaves as a substitute for ownership of the purchased goods the resulting from the resale purchase price claim in advance according to § 398 BGB cede . Furthermore, he authorizes the conditional buyer analogously to § 185 paragraph 1 BGB to collect this claim in his own name from the third party . This form of security thus combines the retention of title with an assignment of security .

With the extended reservation of title there is the possibility of over- securing the conditional seller: The claim that he can assign is typically more valuable than the object of sale, since the conditional buyer sells it on with its own profit margin. Furthermore, the value of the purchase price claim to be secured is reduced with each installment payment, so that his legitimate interest in securing is increasingly reduced. Against this background, if the value of the secured purchase price claim clearly exceeds that assigned by way of security, the seller is obliged, in good faith, by way of a supplementary interpretation of the contract, to at least partially transfer the claim back to the reserved buyer. If there is such a clear difference in value from the outset, the agreement of the assignment is ineffective even according to Section 138 (1) BGB or Section 307 (1) BGB due to unreasonable disadvantage for the reserved buyer.

The application of the extended retention of title also comes when the matter by the conditional purchaser prior to the sale process will be. From the perspective of the conditional seller, there is a risk that the buyer will acquire property through processing. According to § 950 paragraph 1 sentence 1 BGB, this is basically the case, unless the value of the processing or the transformation is significantly lower than the value of the processed item. In order to avoid this acquisition of property, the buyer and seller often agree on a processing clause, which orders that after processing, the conditional seller acquires ownership of the newly manufactured item. However, such clauses go too far if the processor uses materials from different manufacturers. In order to avoid a conflict with other sellers, who may also use processing clauses, and to avoid being assessed as immoral, the clauses can be designed in such a way that the seller acquires co-ownership of the newly manufactured item to an extent that corresponds to the value of its material corresponds. Co-ownership is also agreed if the matter is not processed, but with other connected ( § 947 BGB) or mixed ( § 948 BGB) is.

If the conditional buyer goes bankrupt, there are no differences with regard to the legal position of the conditional seller if the goods were not resold by the buyer. He can therefore separate the thing as the owner. The situation is different, however, if the goods have already been sold or processed: In these cases, the retention of title no longer serves to secure ownership of the purchased item, but solely to secure claims under the law of obligations, similar to the purpose of security transfer and security assignment. According to § 50 and § 51 InsO, these rights only give rights of separation. Therefore, the extended retention of title in the insolvency of the buyer only justifies a right to separate as soon as the reserved buyer pays the purchase price in full.

Collisions

An extended retention of title often collides with a global assignment . These are typically agreed with banks as security for a loan. As part of a global assignment, the security seller assigns all current and future claims to the security buyer. If the assignment to the bank takes place before the assignment to the conditional seller, the later assignment runs the risk of being void because the assignor does not own the claim. However, a prior global assignment to a bank can be immoral : Due to the assignment, the conditional buyer cannot fulfill his obligation to assign the purchase price claim to the conditional seller. If the lender knows that the borrower regularly buys goods subject to reservation, he accepts such breaches of contract vis-à-vis the reservation seller. Therefore the earlier global assignment according to § 138 paragraph 1 BGB is ineffective due to immorality. The bank can avoid this by ensuring through a partial waiver clause that the security assignment can be made to the conditional seller.

A similar conflict exists with the sale of a purchase price claim by the conditional seller by way of factoring . Here, the conditional buyer sells claims that he is entitled to from transactions to a financier, usually a bank. As a rule, this is done in advance, which is why future purchase price claims are assigned. It is therefore possible that such an advance assignment will result in an extended retention of title. In the event that factoring and extended retention of title coincide, the assignment of the claim depends on whether there is a case of real or fake factoring. With real factoring, the bank buys the receivable from the conditional buyer and bears the risk of its intrinsic value. Thus, the conditional buyer loses his claim, but gains a secure equivalent, the purchase price. With this he can meet the requirement of his conditional seller. From his point of view, there is therefore no difference to a collection of the claim against a customer. Since his position does not deteriorate, the breach of contract theory does not apply, so that real factoring prevails against the extended retention of title. The situation is different with spurious factoring, which is now extremely rarely agreed: Although the bank accepts the claim in this form of factoring too, it reserves the right to recourse to its previous owner, the conditional buyer, if it is unenforceable. to take. The claim is therefore only assigned on account of performance . In this case, the assignment serves the lender as security for the loan. Therefore it is treated by the jurisprudence as a security assignment, which is why it can be immoral and therefore ineffective because it induces a breach of contract.

According to § 399 BGB, two parties can agree that a claim may not be assigned . If the conditional buyer makes such an agreement with the purchaser of the purchased item, this jeopardizes the assignment of security to the conditional seller. In commercial transactions , Section 354a of the Commercial Code counteracts.

Extended retention of title

With the extended reservation of title, the reservation seller secures, in addition to his purchase price claim, further claims to which he is entitled against the reservation buyer. The extension of the retention of title comes about when the condition precedent under which the transfer is based relates to the fulfillment of all claims to be secured. The buyer thus only acquires ownership of the purchased item when he has settled all claims. A frequent application of the extended retention of title is the current account agreement , in which the retention of title extends to all claims from an ongoing business relationship. The admissibility of such an agreement may conflict with § 138 BGB and § 307 BGB, as there is a risk of overcollateralisation due to the security of several claims.

According to Section 449 (3) of the German Civil Code (BGB), the inclusion of claims by a third party against the conditional buyer has been inadmissible since January 1, 1999. This was often done in the form of a group reservation. The retention of title was extended to all claims that the seller and its affiliated companies had against the buyer.

If the conditional buyer goes bankrupt, the seller can separate the purchased item as the owner. If the purchase price claim has already been paid, the item only functions as security property, as with the extended retention of title . Therefore, it does not establish a right of segregation, but a right of segregation.

Other forms

A forwarded retention of title is rarely agreed. In doing so, the conditional buyer informs his buyer that he has acquired the object under retention of title when it is sold. As a result, the conditional buyer and his customer agree that the item remains the property of the conditional seller until the full purchase price has been paid to him. The agreement of such a retention of title in terms and conditions represents an unreasonable disadvantage for the buyer according to § 307 paragraph 1 sentence 1 BGB, which is why it has no effect.

In the case of subsequent retention of title, the goods are resold under agreement of a new retention of title between the conditional buyer and his buyer.

Legal situation in other states

Austria

The retention of title is also recognized in the Austrian legal system . As in Germany, the retention of title was not developed by the legislator, but rather emerged in legal practice. In contrast to Germany, however, the extended retention of title is not recognized, as the Austrian legal system wants to avoid circumventing the publicity regulations of the lien .

France

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 through a retention of title clause ( clause de réserve de propriété ). In this clause it can be agreed, for example, that the transfer of ownership will only take place at a certain point in time, by fulfilling an agreed form (e.g. notarial certification), by actually receiving the item or by paying the full purchase price.

literature

  • Fritz Baur, Jürgen Baur, Rolf Stürner: Property law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 .
  • Ulrich Büdenbender: § 449 . In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  • Stephan Mitlehner: Furniture security in insolvency proceedings . 4th edition. RWS Verlag Kommunikationforum, Cologne 2016, ISBN 978-3-406-67000-8 .
  • Detlef Schmidt: § 449 . In: Hanns Prütting, Gerhard Wegen, Gerd Weinreich (ed.): Civil Code: Comment . 12th edition. Luchterhand Verlag, Cologne 2017, ISBN 978-3-472-09000-7 .
  • Ralph Weber: Property law I: movable property . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-0654-9 .
  • Harm Peter Westermann: § 449 . In: Harm Peter Westermann (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 3 : Sections 433-534, finance leasing, CISG. CH Beck, Munich 2016, ISBN 978-3-406-66543-1 .
  • Klaus Vieweg, Almuth Werner: Property law . 8th edition. Franz Vahlen, Munich 2018, ISBN 978-3-8006-5696-7 .

Web links

Individual evidence

  1. ↑ Ralph Weber: Property Law I: Movable things . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-0654-9 , § 12 marginal no. 1, 4.
  2. ^ Harm Peter Westermann: § 449 , Rn. 1. In: Harm Peter Westermann (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 3 : Sections 433-534, finance leasing, CISG. CH Beck, Munich 2016, ISBN 978-3-406-66543-1 .
  3. ^ Klaus Vieweg, Almuth Werner: Property Law . 8th edition. Franz Vahlen, Munich 2018, ISBN 978-3-8006-5696-7 , § 11 Rn. 2.
  4. ↑ Ralph Weber: Property Law I: Movable things . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-0654-9 , § 12 marginal no. 5.
  5. ↑ Ralph Weber: Property Law I: Movable things . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-0654-9 , § 12 marginal no. 5.
  6. ↑ Ralph Weber: Property Law I: Movable things . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-0654-9 , § 12 marginal no. 6th
  7. ^ Klaus Vieweg, Almuth Werner: Property Law . 8th edition. Franz Vahlen, Munich 2018, ISBN 978-3-8006-5696-7 , § 11 Rn. 9-11.
  8. ↑ Ulrich Büdenbender: § 449 , Rn. 8. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  9. ^ A b Klaus Vieweg, Almuth Werner: Property Law . 8th edition. Franz Vahlen, Munich 2018, ISBN 978-3-8006-5696-7 , § 11 Rn. 3.
  10. ^ Harm Peter Westermann: § 449 , Rn. 8. In: Harm Peter Westermann (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 3 : Sections 433-534, finance leasing, CISG. CH Beck, Munich 2016, ISBN 978-3-406-66543-1 .
  11. ^ Fritz Baur, Jürgen Baur, Rolf Stürner: Property Law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 59, Rn. 1.
  12. ^ A b Fritz Baur, Jürgen Baur, Rolf Stürner: Property Law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 59, Rn. 12.
  13. ↑ Jürgen Basedow: § 305 , Rn. 108. In: Wolfgang Krüger (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 2: §§ 241-432 . CH Beck, Munich 2016, ISBN 978-3-406-66540-0 .
  14. ↑ Andreas Kollmann : § 305 , Rn. 122. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  15. ↑ BGHZ 35.85 (94).
  16. ^ Fritz Baur, Jürgen Baur, Rolf Stürner: Property Law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 59, Rn. 19th
  17. ^ Fritz Baur, Jürgen Baur, Rolf Stürner: Property Law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 59, Rn. 20-25.
  18. ^ Matthias Habersack, Jan Schürnbrand: The retention of title after the reform of the law of obligations . In: Juristische Schulung 2002, p. 833 (837).
  19. ^ Marina Wellenhofer: Property law . 34th edition. CH Beck, Munich 2019, ISBN 978-3-406-75197-4 , § 14, Rn. 13.
  20. ^ Marina Wellenhofer: Property law . 34th edition. CH Beck, Munich 2019, ISBN 978-3-406-75197-4 , § 14, Rn. 17th
  21. ↑ Ralph Weber: Property Law I: Movable things . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-0654-9 , § 12 marginal no. 76.
  22. ^ A b Dieter Medicus, Jens Petersen: Civil law . 26th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5462-8 , Rn. 462.
  23. ↑ BGHZ 56, 123 (126).
  24. ↑ Michael Engelhardt: Fate of the expectant right when selling an item sold under retention of title - Part II . In: Juristische Schulung 2013, p. 330 (333–334).
  25. ↑ BGHZ 54, 214 (218).
  26. ↑ Stefan Leible, Olaf Sosnitza: Basic cases on the right of retention of title . In: Juristische Schulung 2001, p. 341 (343).
  27. ↑ BGHZ 55, 20 (26).
  28. ↑ Stephan Mitlehner: movable collateral in the bankruptcy proceedings . 4th edition. RWS Verlag Kommunikationforum, Cologne 2016, ISBN 978-3-406-67000-8 , Rn. 176.
  29. ↑ Federal Court: IX ZR 220/05 . In: Neue Juristische Wochenschrift 2008, p. 1803 (1805–1806).
  30. ↑ BGHZ 4, 153 (164).
  31. ^ Klaus Vieweg, Almuth Werner: Property Law . 8th edition. Franz Vahlen, Munich 2018, ISBN 978-3-8006-5696-7 , § 11 Rn. 12-13.
  32. ↑ Federal Court of Justice: IX ZR 74/95 . In: Neue Juristische Wochenschrift 1998, p. 2047.
  33. ↑ BGHZ 46, 117 .
  34. ^ Christian Mauch: § 950 , Rn. 4-5. In: Alfred Keukenschrijver, Gerhard Ring, Herbert Grziwotz (eds.): Nomos Commentary BGB: Property Law . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1103-1 .
  35. ^ Christian Mauch: § 950 , Rn. 9. In: Alfred Keukenschrijver, Gerhard Ring, Herbert Grziwotz (eds.): Nomos Commentary BGB: Property Law . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1103-1 .
  36. ↑ Moritz Brinkmann: § 47 , Rn. 42. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (Ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
  37. ↑ Elke Bäuerle: § 51, Rn. 20-27. In: Eberhard Braun (Ed.): Insolvency Code: InsO with EuInsVO (new version): Comment . 7th edition. CH Beck, Munich 2017, ISBN 978-3-406-69675-6 .
  38. ↑ BGHZ 30, 149 .
  39. ↑ BGHZ 32, 361 (362).
  40. ↑ BGHZ 56, 173 (179).
  41. ↑ Ralph Weber: Property Law I: Movable things . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-0654-9 , § 12 marginal no. 126.
  42. ↑ BGHZ 69, 254 .
  43. ^ Rolf Stürner: § 398 , Rn. 30. In: Othmar Jauernig, Rolf Stürner (Hrsg.): Bürgerliches Gesetzbuch . 17th edition. CH Beck, Munich 2018, ISBN 978-3-406-68174-5 .
  44. ^ Klaus Vieweg, Almuth Werner: Property Law . 8th edition. Franz Vahlen, Munich 2018, ISBN 978-3-8006-5696-7 , § 11 Rn. 26th
  45. ↑ BGHZ 82, 50 .
  46. ↑ Klaus Hopt: § 354a , Rn. 1. In: Adolf Baumbach, Klaus Hopt, Christoph Kumpan, Hanno Merkt, Markus Roth (eds.): Commercial Code: with GmbH & Co., commercial clauses, banking and stock exchange law, transport law (without maritime law) . 37th edition. CH Beck, Munich 2015, ISBN 978-3-406-67985-8 .
  47. ↑ Tobias Lettl: The effectiveness of the assignment of a monetary claim despite the effective prohibition of assignment according to § 354a HGB . In: Juristische Schulung 2010, p. 109 (110).
  48. ^ A b c Fritz Baur, Jürgen Baur, Rolf Stürner: Property law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 59, Rn. 6th
  49. ↑ Ralph Weber: Property Law I: Movable things . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-0654-9 , § 12 marginal no. 153.
  50. ^ Johann Kindl: retention of title and expectant rights . In: Journal for legal studies 2008, p. 477 (478).
  51. ↑ Moritz Brinkmann: § 51 , Rn. 40. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
  52. ↑ Detlef Schmidt: § 449 , Rn. 32. In: Hanns Prütting, Gerhard Wegen, Gerd Weinreich (ed.): Civil Code: Commentary . 12th edition. Luchterhand Verlag, Cologne 2017, ISBN 978-3-472-09000-7 .
  53. ^ BGH, judgment of March 4, 1991, II ZR 36/90 = Zeitschrift für Wirtschaftsrecht 1991, p. 665.
  54. ↑ Stephan Mitlehner: movable collateral in the bankruptcy proceedings . 4th edition. RWS Verlag Kommunikationforum, Cologne 2016, ISBN 978-3-406-67000-8 , Rn. 34.