Acquisition through non-authorization

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When purchasing straight through the ineligibility cases are referred, where the rules on the acquisition in good faith ( § 932 et seq.) Result in the acquisition of a thing because of it, succeeds because the seller was not entitled to sell. The solution to such cases is controversial.

Acquisition in good faith

According to § 932 , § 933 , or § 934 BGB, an item can be acquired by an unauthorized person under certain circumstances. For this purpose, the acquisition must be "in good faith", i. H. believe that the transferor owns the thing. In fact, this frequently used formulation is misleading according to § 932 BGB, because it is not required (in a positive sense) good faith, but bad faith (legally defined in § 932 Paragraph 2 BGB as "knowledge or grossly negligent ignorance" of the true legal situation) is prevented just the acquisition.

The problem

In connection with the purchase of things in good faith from the unauthorized person, cases are now conceivable in which the acquisition, i.e. the effective transfer of ownership of the thing, would become effective precisely because the seller was not authorized to transfer ownership of the thing .

The best known of these constellations occurs when a minor sells something that is not his property.

Example: 13-year-old M sells his parents' game console to K, who knows nothing about the real property situation and does not need to know about it.

If M had sold his own game console here, the transfer of ownership according to Section 107 of the German Civil Code (BGB) would be pending ineffective in this business due to the legal disadvantage (loss of property!). Thus, K could not acquire property until M's parents approve the deal. However, according to the prevailing opinion, the transfer of third-party property is viewed as a so-called neutral transaction , which, in view of the fact that the minor does not suffer any loss of rights here, does not require approval under Section 107 of the German Civil Code. Therefore, K could acquire ownership of the game console precisely because M is not the real owner .

The state of opinion

The prevailing opinion (so Weber : Property Law I) accepts this seemingly absurd legal situation and would allow K to acquire property in the above case. Since M has done something to K here without a legal reason (the purchase contract is and remains pending ineffective!), This transfer of ownership would be reversed via the enrichment right. However, such a purely contractual reversal is not very promising, for example if the K subsequently sold the game console (as the person entitled, because he has become the owner!) Or was enforced into it by K's creditors.

Only a minor opinion, mainly represented by Medicus , wants to correct the result obtained above. Here again it is a matter of dispute how this correction should be achieved. Some believe that §932 BGB should be reduced teleologically by not being able to acquire "more" than can be obtained from the entitled person, while Medicus wants to achieve the correction through a broad interpretation of §107 BGB.

More cases

Similarly, but even more controversial, there are cases in which a spouse, for example, sells household items of the spouses contrary to § 1369 BGB and the buyer is in good faith with regard to the property's property.