Foreign ownership excess
By a foreign owner excess is used when a foreign owner exceeds his (alleged) ownership. This excess triggers various liability consequences. The problem is discussed above all in connection with the regulations of the owner-owner relationship (§ § 987 ff. BGB ).
The basis of legitimate third-party ownership is a contractual relationship from which it follows that one contractual partner may own an item for the other contractual partner. For example, the tenant of an apartment is entitled to own the apartment under the rental agreement. If he culpably damages the thing, the third-party owner is liable for breach of contract and for offense .
The problem of third-party ownership arises when the third-party owner actually has no right to own the thing, but does not know this, for example because the underlying contractual relationship is ineffective for some reason unknown to the parties involved and the third-party owner then damages the thing . Because of his lack of knowledge about the ineffectiveness of the right of possession, the outside owner is referred to in such a case as a bona fide but not authorized outside owner.
However, the Civil Code only lays down liability regulations in the event of bad faith foreign owners, i.e. unauthorized third-party owners who know that they have no right to possession. The bad faith or sued third party owner is obliged to pay damages from § 989 , § 990 BGB or § 823 paragraph 1 or paragraph 2 BGB.
This leads to the paradoxical situation that the bona fide unauthorized third party owner is privileged in addition to the bad faith also over the authorized third party owner. Because the contractual relationship is ineffective, he is not liable on the basis of the contract. Because the liability regulations of the owner-owner relationship only apply to the bad faith and sued third-party owner and are also final according to Section 993, Paragraph 1, last half-sentence of the BGB, he is neither liable for the owner-owner relationship nor for offenses. This leads to a result that cannot be wanted, after all, even the bona fide foreign owner assumes that the thing does not belong to him and he will have to return it to the owner later.
According to the prevailing opinion , § 993 (1) last half-sentence BGB should therefore be reduced in a teleological interpretation . According to this, an exception must be made in the event of an excess of third-party ownership if the third-party owner, if he were the legal owner, would have to answer for the violation of property. As a consequence, § § 823 ff. BGB are applied despite the exclusion in § 993 Paragraph 1 BGB, so that the bona fide unauthorized third party owner is liable to the owner according to the rules of tort law . According to another view, Section 991 (2) is to be applied accordingly. The prevailing opinion rejects this with reference to the conception of the provision as a regulation of a three-person relationship.
literature
- Arndt, Björn, The third-party owner's liability for damages in excess , Münster 2015 - ISBN 978-3-8405-0118-0
- Wilhelm, Jan, The Doctrine of Foreign Ownership Excess , JZ 2004, pp. 650–653
