Familienfideikommiss

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The Familienfideikommiss ( Latin fidei commissum , "to trust [hands] left") is an institution of inheritance and property law , according to which the property of a family , mostly real estate , should be kept forever closed by foundation and only one family member Fideikommissowner who held the usufructuary right . This is to be distinguished from the private real estate of a family member (the sovereign ), the casket , which was subject to his free disposal during his lifetime and after death.

The Familienfideikommiss is close to fiefs , family estates and family foundations .

definition

The Familienfideikommiss was a special property of a family (upper owner), which remained undivided in the hands of a family member (beneficial owner). The owner received only the proceeds of the property for free disposal. Enforcements against the property due to debts of the owner were excluded. This kept the family's property and social position secure, even in the event of bankruptcy. The Fideikommiss was based on a legal foundation - for example through a testamentary provision; the order of succession (usually primogeniture ) was laid down by the founder.

The following explanation, formulated in the style of that time, can be found in the 19th century:

A Fideikommiss is “... according to the Roman law the determination of a testator that his inheritance is an individual thing (Singularfideicommiss or legacy ) or a part or the whole of the inheritance ( Universal Fideikommiss ) to someone else either immediately or after a certain period of time should issue when certain conditions occur. The heir who had to cede the inheritance was called fiduciarius , the recipient fideicommissarius . Under Emperor Vesparian it was decreed that the fiduciar could keep the fourth part of the inheritance for itself when it was surrendered. […] The universal fideicommisse are now rarely used and the singular fideicommisse are treated like legacies. Very different from this are the new Fideikommisse (Fideikommisse successiva), ie foundations, whereby an estate is declared inalienable and the order is prescribed according to which the members of a family or others called to follow one another in the enjoyment of this estate. In the case of entails of this kind, the fiduciar has no claim to the fourth part of the surrender. According to many national laws and due to general principles, the permission of the state is always necessary for the establishment of it, since, if they occur too frequently, they would interfere very disturbingly in all relations of the common being. "

The Familienfideikommiss was of a purely private law nature and thus to be distinguished from the ( all modified ) fiefdom , which also had features under public law .

The Fideikommiss differs from the foundation in the true sense of the word in that it is not a legal person , but the property of the respective owner. However, it is not free property, but rather bound by the stipulated succession regulation, so in the event of death it did not fall into the general inheritance.

Design of the family entails

A family entailment is understood to mean an order by the testator, by virtue of which part of the estate is separated from the rest with the effect that the separated part of the estate is legally split into a landed property and a usable property. Usual property was only ever available to one family member. The family as a whole retained the upper ownership. Accordingly, the person who benefited from the family entailment was neither available nor authorized to encumber the property (tied assets). The beneficiary from the Familienfideikommiss could not dispose of his property freely even after death.

The financial fate of the usufruct of the bound assets was determined by the succession order of the foundation deed. The founder of Familienfideikommisses was between senior councils , majorats , Minoraten and primogenitures choose. A peculiarity was the female line of succession, which only existed in certain areas, for example in Mecklenburg under the maiden law , and in Austria (where, since the Pragmatic Sanction of the Habsburgs, female succession was in principle permitted).

Only those objects could be dedicated to the family entailment with which agriculture, cattle breeding and the like were connected and which were not subject to any manorial rule. Mansions and similar buildings could be added to the family fideikommiss as well as family archives and libraries.

Socio-historical significance

Memorial plaque about the entails of the District Councilor Johann Christian Degener in the Degenershausen Landscape Park ( Falkenstein / Harz )

The Familienfideikommisse were used to preserve the family assets of noble families for generations. Palaces, castles and mansions with the associated agricultural and forestry operations were often tied up in the family entails. They were thus an important tool of the aristocratic family's large estates .

Above all, they also served to provide noble sons who were poorly paid but prestigious and influential offices in the state and the army financially with the income from family assets ( appanages ). At the same time, however, through ownership by the head of the family, they strengthened the cohesion of the noble houses, socially as well as economically, as a late modern form of household power without fragmentation through inheritance . In the high industrialization of the 19th century, they also reached a high point of importance, because land is considered a secure investment in times of upheaval, and the construct secured the preservation of the aristocratic families.

In the 19th century, the family fideikommisse came under criticism because they could not participate in the exchange of goods due to the prohibition of disposal and thus slowed the growth of the national product . Since they were also subject to an encumbrance ban, they could not be used as real loan collateral either. The ban on encumbrance also hindered economic freedom of movement. Furthermore, the family entails were criticized as a special right of the nobility. In addition, the family entails were felt to be too severe a restriction with regard to freedom of property. Through the family fideikommisse the "cold hand" of the testator could control the fate of the property for generations without the involvement of the family holding the property.

Fideikommisse also fell into disrepute if they were used as an instrument of power politics by the former manors after the abolition of serfdom ( peasant liberation ), for example to create large closed forest and hunting areas. Therefore, as relics of feudalism , they were fought both by social democracy and later by National Socialism.

As a result of the dissolution in Germany and Austria in 1938, the owners, who now became independent owners of the Fideikommisse assets, were forced to divide them up within the family as with the regular division of inheritance . At the same objects of public interest, especially large forests and cultural heritage were - two areas designed to the Nazi rulers major focus - to certain conditions used ( protection forests and conservation ).

Today they represent a problem for historical research. While the general archives of the manors, which were laid down in the competent courts, are freely accessible today, the family entails archives, even if they are deposited in public archives, are only accessible with the consent of the owners visible.

History and National

In Roman law , the entails was a testamentary decree that instructed the heir to cede what was inherited after a certain period of time - usually in connection with the occurrence of a certain event (e.g. birth or marriage) - in whole or in part to a third party. Originally not actionable as a purely moral obligation, the entails, comparable to the formal legates , could be enforced before the praetor (specifically: praetor fideicommissarius ). Classical jurisprudence had developed the entails in order to counter inheritance restrictions. In particular, the institute was directed against the Augustan marriage legislation of the lex Voconia , which forbade the appointment of women to heir.

Germany

With the reception of Roman law in Germany, a need that is common in the previously ruling jurisdictions legal consequence of death was due through the male line to Parentelen before Testier- and property freedom of the common law to protect. It was therefore made possible for the testator, as the founder of a family affidavit, to separate part of the property and to withdraw it from the property regime under Roman law. With regard to patrimonial estates , this was already recognized by observance and family agreements when Roman law entered Germany. The family fideikommisse developed from testamentary orders that contained prohibitions on division and sale. From this the fiction of a successio ex providentia et pacto maiorum (through succession out of caution and contract of the ancestors) was founded. The legal validity of such orders was derived from the Roman law entailed substitution and in analogy to the investiture contract . Since not only noble families were able to issue a ban on dividing and selling their estates, the family entails arose alongside the traditional estates.

The Prussian edict of October 9, 1807 allowed a family entailment to be dissolved by a family resolution. As a result, the family was able to revoke the orders that the founder of the family fideikommiss had left to subsequent generations and restore their full freedom of disposal and testamentary freedom over the property. In the German parts of the country occupied by Napoleon I , the family entrepre- neurship was either completely abolished or severely restricted. Since the Congress of Vienna , however, family entanglements have also been permitted there again.

Since the abolition of the lordship in Prussia, the paradoxical situation arose that because of the edict of 1807 on the one hand family entails could be dissolved by a family resolution, but on the other hand every farmer could found a family entailment. On the one hand, in order to maintain the supply function of the family entails, the tied assets had to yield a minimum return. On the other hand, in order not to withdraw too much wealth from economic activity, the yield was limited to a maximum limit.

The Paulskirche constitution of 1848 already called for the dissolution of the family entails. With the entry into force of the Civil Code on January 1, 1900, civil legal unity was introduced in the German territories that comprised the German Empire . According to Article 59 of the Introductory Act to the Civil Code , the law of the federal states over family entails remained unaffected. Since the Weimar Constitution came into force, the aim was again to wind up tied assets.

After the November Revolution , the privileges of the nobility were abolished. According to Article 155 of the Weimar Constitution of 1919, the family entails were also to be eliminated. This did not have to be done in one step, the resolution could take place over the course of time. The concrete implementation took place through state law. In Prussia these were the Family Goods Ordinance of December 30, 1920 and the Compulsory Dissolution Ordinance of November 19, 1920. Thereafter, the family entails could remain in place until the death of the owner on January 1, 1921 and should then be dissolved. This dissolution should preferably be done on a voluntary basis, but it could also be ordered. To this end, dissolution offices for family property were created that had judicial powers. These were converted into Fideikommisssenate at the Higher Regional Courts in 1935 (laws to standardize the resolution of Fideikommis) .

In 1938 the adjustment regulations (which still apply in Germany today) were issued. The law on the expiry of family entails and other tied assets of July 6, 1938 and the associated ordinance of March 20, 1939 regulated the further fate of tied assets. Accordingly, the entails should expire on January 1, 1939; However, in order to settle claims from family members and other relationships involved with the entails, a blocking period was set; a final dissolution should only become legally binding with the issue of the so-called Fideikommiss dissolution certificate. Due to the war, the embargo periods had to be postponed indefinitely. Therefore, after the Second World War, there were still a few assets with entails property.

The rights that were established by the repealed provisions of the entails or on the basis thereof have not been affected by the repeal. This also applied to registered mortgages, money, securities or, in their entirety, property administered by trustees.

Even today in Germany there is a special jurisdiction of a senate with regard to legal disputes concerning entails at some higher regional courts (for example the Bavarian higher regional courts, the OLG Frankfurt and the OLG Jena ). The Fifth Civil Senate is responsible at the Federal Court of Justice .

On November 23, 2007, the law on the repeal of Fideikommiss dissolution right was passed, which is supposed to complete the dissolution process.

Austria

In Austria the entails were regulated according to §§ 618 to 645  ABGB , JGS No. 946/1811.

At the end of the 19th century they were still the predominant tool of large estates, so around 1895 the 297 families who had set up a Fideikommiss owned 1.2 million hectares of land (of a total of 30 million hectares and 8.7 million hectares of large estates including church and bourgeoisie).

In 1918/19 the principle of repeal was discussed but not enforced. Only a few important family entails and funds of the imperial family were repealed and nationalized with the Habsburg Law (Section 6, Paragraph 2). The distribution to the successor states of the monarchy was regulated by a state treaty of 1924.

With the connection , the German law on the extinction of the family entails (FidErlG) together with the implementation ordinance (DVFidErlG) came into force on October 1, 1938, and thus retrospectively the formal repeal in the Weimar constitution from 1919. This decision is still legally valid today. The Higher Regional Court of Vienna was appointed as the Fideikommißgericht in the form of a special court.

The FidErlG itself was repealed as obsolete with the amendment of federal law in 1999. Today questions of entails only play a role in isolated cases, for example in land registry entries.

Switzerland

In Switzerland there are currently (as of 2011) around twenty entails, including that of Leonhard Zollikofer (1529–1587) with his nephews of the Georg and Laurenz lines, which was founded in 1586 by entailing Altenklingen Castle . The establishment of new entails is no longer permitted.

Successor institutions

With the dissolution in Germany and Austria, the entails became free property in the hands of the last owner.

As before, the testator can enforce his interest in keeping the estate in the family:

See also

literature

General:

Germany:

Contemporary (by date):
  • Wilhelm Bornemann: Systematic presentation of the Prussian civil law using the materials of the general land law. 2. increased and improved edition. Jonas, Berlin 1842–45.
  • Ludwig Zimmerle : The German family property system according to its origin and its course. Laupp, Tübingen 1857 ( digitized version )
  • William Lewis: The Right of Family Fiduciary. Weidmann, Berlin 1868 (reprint: Scientia-Verlag, Aalen 1969).
  • Hans Hermann von Schweinitz: To the entails of the present and future. A consideration of the preliminary draft law on family entails. Walther, Berlin 1904 ( digitized version ).
  • Wilhelm Rakenius : The home estates of the high nobility and the ordinary family fideicommisse. Heidelberg Diss. Iur. 1905.
  • Hermann Ramdohr : The family fideikommiss in the area of ​​the Prussian general land law. F. Vahlen, Berlin 1909 ( digitized version ).
Contemporary:
  • Siegfried Dörffeldt, Jan Nikolaus Viebrock: Hessian monument protection law. 2nd revised edition. Deutscher Gemeindeverlag, Mainz-Kostheim 1991, ISBN 3-555-40132-7 ( municipal writings for Hesse 38).
  • Jörn Eckert : The struggle for family entails in Germany. Studies on the death of a legal institution. Lang, Frankfurt am Main et al. 1992, ISBN 3-631-44573-3 ( legal history series 104), (also: habilitation thesis, University of Kiel 1991).
  • Barbara Brandner: The dissolution of the family fideikommisse in Thuringia . Dissertation, University of Jena 2000.
  • Hartmut Fischer: The dissolution of entails and other bound assets in Bavaria after 1918 , dissertation Munich 2012; NOMOS Verlag 2013, ISBN 978-3-8487-0423-1 .
  • Thilo von Trott zu Solz: Special assets without inheritance law: on the possibilities of fideikommiss-like asset ties. Lang, Frankfurt am Main et al. 1999, ISBN 3-631-33923-2 ( European university publications . Series 2: Law. 2544; also: Dissertation, University of Potsdam 1998).
  • Sven Solterbeck: Blue blood and red numbers. Western nobility in bankruptcy 1700–1815. Waxmann Verlag, Münster 2018. ISBN 978-3-8309-3869-9 .

Austria:

Contemporary:
Contemporary:
  • Otto Fraydenegg-Monzello: On the history of the Austrian entails right. in: Berthold Sutter (Ed.): Reforms of the law. Festschrift for the 200th anniversary of the Law Faculty of the University of Graz. Leykam Verlag, Graz 1979, ISBN 3-7011-7096-7 , pp. 777-808.
  • Roman Kovacs: The correction of the land register according to § 136 GBG on request, using the example of pre- and repurchase rights for family entails. Diploma thesis Vienna University of Applied Sciences, March 2005 ( pdf , wkimmo.info) - with a basic part 2 Der Familienfideikommiss , pp. 2–16.

Switzerland:

  • Marcel Lötscher: Familienfideikommiss and Trust - The inland trust as a vehicle for private-benefit asset perpetuation based on the old family entails of Switzerland. Scientific articles series from Tectum Verlag: Law , Volume 71, Tectum, Marburg 2014, ISBN 978-3-8288-3418-7 .

Web links

Wikisource: Confirmation certificate of the Counts von Walderdorff'schen Familienfideicommisses Bodenstein (1875)  - sources and full texts
Wikisource: Basic judgment of the Bavarian ObLG from 2004  - sources and full texts

Individual evidence

  1. ↑ Sven Solterbeck: Blue blood and red numbers. Westphalian nobility in bankruptcy 1700–1815 . Waxmann Verlag, Münster 2018, ISBN 978-3-8309-3869-9 , pp. 260-283 .
  2. ↑ Conversationslexikon, sixth volume, Brockhaus Leipzig publishing house, 1852.
  3. ↑ Lit. Kovacs: 2005, 3.1 Rechtsnatur des Fideikommisses , p. 4.
  4. ↑ § 626 ABGB i. d. F. 1811.
  5. ↑ a b Lit. Kovacs 2005, p. 11 f.
  6. ↑ Lit. Kovacs 2005, p. 7 f.
  7. ↑ Lit. Kovacs 2005, p. 15 f.
  8. ↑ §§ 15 resp. 11 para. 4 FidErlG (web links see below); Compare Lit. Kovacs 2005, p. 12 resp. 3.5.1, p. 13 f
  9. ^ Volkmar Weiss: About family associations in the past and future. In: Familie und Geschichte 10th vol., 2001 (full article pp. 145–151; information from Lit. Kovacs 2005, 3.2 Fideikommissarchiv , p. 8).
  10. ↑ Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 362 ff.
  11. ^ Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 197 f.
  12. ↑ Family Goods Ordinance of December 30th. GS 1921 p. 77.
  13. ↑ Compulsory Dissolution Ordinance for Family Goods (Compulsory Dissolution Regulation) of November 19, 1920. GS p. 463.
  14. ↑ a b Law for the standardization of the resolution of entails of June 26, 1935 ( RGBl. I p. 785 ); entered into force in Austria per GBlÖ 479/1938 (eReader, ALEX Online ).
  15. ^ Horst Romeyk: Administrative and administrative history of the Rhine province 1914-1945. 1985, ISBN 3-7700-7552-8 , pp. 491-520
  16. ↑ a b Law on the Extinction of Family Fideikommisse and other bound assets of July 6, 1938 ( RGBl. I p. 825 ); Austrian version GBlÖ 254/1938 (online, ris.bka ), there in particular the fourth section: Special provisions for Austria .
  17. ↑ a b Ordinance on the implementation and amendment of the law on the expiry of family entails and other tied assets of March 20, 1939 ( RGBl. I p. 509 )
  18. ↑ Lower Saxony State Parliament: Printed matter 11/2575 , p. 62 f.
  19. ↑ Art. 54 AGGVG
  20. ^ First ordinance on the settlement of entails and other tied assets of July 22, 1947 (GVBl. P. 66), § 1
  21. ^ Text of the law on the repeal of entails dissolution right ; Reason: BT-Drs. 16/5051, pp. 45-48
  22. ↑ §§ 618 ff ABGB, Stf. JGS No. 946/1811 (eReader, ALEX Online ).
  23. ↑ Lit. Kovacs 2005, p. 5 f.
  24. ↑ cf. Abolition of entails (65 dB / A-PN). Parliamentary materials, parlament.gv.at (submitted to the Provisional National Assembly November 1981).
  25. ^ Roman Conference: Agreement between Austria, Hungary, Italy, Poland, Romania and Czecho-Slovakia on entails. Announced in Federal Law Gazette 152/1924 (eReader, ALEX Online).
  26. ↑ § 36 FidErlG 1938.
  27. ^ Entry on Fideikommiss in the Austria Forum  (in the AEIOU Austria Lexicon ).
  28. ↑ According to Art. III, Paragraph 1 of the Act of October 3, 1945 on Measures to Restore the Austrian Civil Justice , StGBl. 188/1945.
  29. ↑ cf. Decision of the Supreme Court of November 17, 1977 , Gfz. 6 Ob 670/77, SZ 50/148 (idgF online, ris.bka ).
  30. ↑ Federal law for the adjustment of the simple federal laws and ordinances promulgated before 1946 (First Federal Law Consolidation Act - 1. BRBG). Federal Law Gazette I No. 191/1999 (see the entry on FidErlG in ris.bka ).
  31. ↑ See Lit. Kovacs: The correction of the land register ... 2005.
  32. ↑ Meeting, Werner Schubert: on koeblergerhard.de (accessed September 19, 2018).