Use advantage

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In the legal system, advantages of use are the uses that a thing or a right grants the user without it being fruit .

General

Whoever exercises the rights connected with the possession of a thing or a right uses the thing or the right. The benefits that endows this leaflet, is in the right use or advantage in business value in use . In the case of things, for example, the uses of money consist of the collected credit interest or the saved debit interest , in living in a house or the use of a motor vehicle, in the case of rights, for example, the advantages from the voting right of a partner . The benefits of use of a property or the right of a property consist of its use as loan security and the resulting interest rate benefits.

Legal issues

In addition to fruits (material or legal fruits; § 99 BGB ), the legal term use also includes benefits of use. Usages include § 346 BGB, § 347 Paragraph 1 BGB, § 446 Sentence 2 BGB, § 743 Paragraph 1 BGB, § 818 Paragraph 1 BGB, § 1030 BGB and § 2020 BGB.

If a return service is specified in a consumer contract in the event of a withdrawal , this is to be taken as a basis for the calculation of the compensation ; If compensation is to be paid for the benefit of a loan , it can be proven that the value of the benefit was lower ( Section 346 (2) BGB). Uses include interest income and other income that has accrued to the user from a capital- increasing investment . Hat to that judgment, the enrichment debtor's earned money for repayment of debt related, he has thereby saved interest payments in accordance with § 818 issue para. 1 and 2 BGB as utility benefits from the use of money to the enrichment of creditors. After the handover , the purchaser is entitled to the use of the purchase contract and he bears the burden of the purchased item ( transfer of risk ; § 446 sentence 2 BGB). According to Section 743 (1) of the German Civil Code (BGB), each participant in a community of fractions is entitled to a fraction of the fruit corresponding to his share, including the usage benefit. The objective rental value is to be taken as a basis when measuring the benefits of use of a property. In the case of unjust enrichment , the obligation to surrender also extends to the uses drawn pursuant to Section 818 (1) BGB . The usufructuary has according to § 1030 even the BGB real right to pull the uses of the matter, including the use advantage. The inheritance owner has to surrender the drawn uses to the heir ( § 2020 BGB).

If an employee is also allowed to use a company car privately, a tax benefit in the form of a monetary benefit can be added to him as income in the amount of the expenses he saves because he does not have to maintain his own motor vehicle.

Use is only possible as long as the thing used is preserved. The consumption of the thing itself is not one of the benefits of use, nor is the proceeds from the sale of the thing. In addition, there must be financial loss that only exists in the case of a monetary financial advantage with commercialized use. This is not the case with a use that the general public sees as "hobby", "luxury" or as a mere means of "spending free time" and therefore attaches value to it only for increasing the lifestyle, but not as an independent economic value.

Legal consequences

The action for compensation for use (in the event of loss of use) arises from Section 987 (1) BGB and Section 990 (1) BGB. These provisions relate only to property uses, which according to Section 100 BGB only includes the direct and indirect fruits ( Section 99 Paragraphs 1 and 3 BGB) and the benefits of use of the item. These property uses do not include the special profits from an operated company . The defendant cannot surrender the advantage of use, but has to compensate it with money because the restitution or surrender is excluded due to the nature of what has been obtained (Section 346 (2) No. 2 BGB).

In the event of the reversal of a used vehicle purchase, the value replacement is to be estimated according to Section 346, Paragraph 2, Clause 1, No. 1 of the German Civil Code for uses to be surrendered on the basis of the gross purchase price; the compensation in use determined in this way is not to be increased by the value added tax.

Individual evidence

  1. ↑ Otto Palandt / Jürgen Ellenberger , BGB Commentary , 73rd edition, 2014, § 100 Rn. 1
  2. ↑ Gerhard Köbler , Etymological Legal Dictionary , 1995, p. 145
  3. ↑ BGHZ 138, 160 , 164
  4. ↑ BGHZ 98, 212
  5. ↑ Heinz Hübner, General Part of the Civil Code , 1996, p. 188
  6. ↑ RGZ 118, 266, 268 f.
  7. ↑ Reinhard Gaier, Legal Consequences of Withdrawal from the Land Purchase Agreement when Charging the Subject of the Service , in: Zeitschrift für Immobilienrecht (ZfIR), 2002, 612
  8. ↑ Otto Palandt / Jürgen Ellenberger, BGB Commentary , 73rd edition, 2014, § 100 Rn. 1
  9. ↑ BGHZ 138, 160
  10. ↑ BGH NJW 1966, 1707
  11. ↑ Hans Theodor Soergel / Wolfgang Siebert , Bürgerliches Gesetzbuch: with introductory law and subsidiary laws , 1967, preliminary. 15 before Section 987
  12. ↑ BGHZ 76, 179 , 187 - swimming pool
  13. ↑ BGHZ 63, 393 , 398 - fur coat
  14. ↑ BGHZ 89, 60 , 64 - motor sports boat
  15. ↑ BGHZ 98, 212
  16. ↑ BGHZ 7, 208 , 218
  17. ^ BGH WM 1969, 1083
  18. ↑ BGHZ 7, 208 , 218
  19. ↑ BGHZ 39, 186
  20. ↑ BGH, judgment of April 9, 2014, Az .: VIII ZR 215/13 = BGH NJW 2014, 2435