Eviction

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Eviction ( Latin evincere : “to defeat completely”, in Swiss parlance also defensiveness ) is in civil law the enforcement of a right to surrender or assignment by a person who has a better right to an object than the owner or holder. Systematically it is a warranty claim for legal defects.

Is one thing a purchaser by a third party due to an already existing on the acquisition defect withdrawn, the transferor has the acquirer for this loss to stand (see Art. 192  ff.  OR ).

Roman law

The so-called eviction liability comes from Roman law . It was relevant if the seller lacked real authorization or the property was legally encumbered. This could happen if a non-owner sold without authorization from the owner or a non-owner, but also the owner, sold, although the thing was given a third party authorization (e.g. a lien). In the first case, the rei vindicatio and the actio Publiciana were available to the owner, depending on the circumstances ; in the second case, the pledgee could pursue his non-possessory pledge through actio Serviana , a serviceman through actio confessoria .

The origin was the so-called auctoritas liability of the seller to the buyer. The incumbent seller - if necessary through direct support in the eviction process initiated against the buyer by the third party - was responsible for ensuring that the buyer remained in possession of the purchased item ( auctoritatem praestare or auctoritatem subsistere ). If the seller ignored this obligation or if he denied it ( auctoritatem defugere ) or if the buyer was condemned ( auctoritas nomine victum esse or vinci ) by the seller despite the support (if necessary after a dispute announcement laudare auctorem ), the actio auctoritatis could be used against him for payment of the double the purchase price ( duplum pretium ) can be sued.

Germany

German law only recognizes eviction as an independent legal figure in the statute of limitations of Section 438 (1) no. 1 a) BGB ; eviction liability in legal purchases was abolished with the modernization of the law of obligations .

literature

Individual evidence

  1. ↑ Art. 195  OR .
  2. ^ Lexicon '88 - Meyers Konversations-Lexikon, 1888 .
  3. ↑ Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 149–153 (here: p. 150 f. )
  4. ^ Rafael Brägger: Actio auctoritatis . Freiburg jurisprudential treatises. New episode (FRA), vol. 67, 2012, p. 15 f.
  5. ↑ Roland Michael Beckmann, Commentary on Section 433 BGB, in: Julius von Staudinger (Greetings): Commentary on the Civil Code, Revised Berlin 2004, Rn. 68
  6. ↑ Annemarie Matusche-Beckmann, Commentary on Section 438 BGB, in: Julius von Staudinger (Greetings): Commentary on the Civil Code, Revised Berlin 2004, Rn. 43
  7. ^ Hans Peter Westermann, commentary on § 435 BGB, in: Kurt Rebmann u. a. (Ed.): Munich Commentary on the Civil Code, Rn. 1