Legal type of acquisition

The legal form of acquisition (also: mode ) is understood to be the possibilities of forms of transfer for the effective transfer of ownership, which are finally regulated by Austrian law.

In Austria, § 380 ABGB states that no property can be obtained without a title and without a legal form of acquisition . In addition, the legislature clarifies in § 425 ABGB that property and all real rights in general, except in the cases specified in the law, can only be acquired through legal transfer and takeover.

Moveable things

The traditional principle applies to movable objects , which means that they usually have to be physically transferred from hand to hand ( Section 426 ABGB). For movable objects that by their nature do not permit such a handover (including claims, warehouse, freight or other general items), Section 427 of the Austrian Civil Code allows handover by means of symbols. The criterion of " impossibility ", which allows the subsidiary handover by signs, is to be viewed very strictly (e.g. the case law regards aircraft as flexible enough not to allow handover by signs).

According to the law, these signs can be tools (in particular keys) that allow sole access and thus the taking of possession, documents with a corresponding description of ownership and features from which everyone can clearly see that the thing has been handed over (e.g. markings on felled logs). Another exception is § 428 ABGB, which allows the so-called transfer by declaration:

The transfer by declaration follows three different forms, which are also referred to as transfer surrogates: The constitution of possession means that the purchaser immediately acquires property, but the thing remains with the seller. The so-called short hand transfer (traditio brevi manu) is characterized by the fact that the thing is already with the purchaser and he immediately becomes the owner through the declaration. This prevents the thing from being pushed back and forth unnecessarily. Finally, the ownership instruction should be mentioned, in which a change of ownership takes place while the thing is with a third party who has nothing to do with the acquisition of property (e.g. picture of A hangs on loan in the gallery of C while the picture is sold from A to B).

Immovable things

The intabulation principle applies to immovable objects . The only legal form of transmission is the entry in the public books ( incorporation ) according to § 431 ABGB. However, there is also the possibility of an off-book acquisition for real estate: Here, ownership and inheritance are to be mentioned. The owner and the heir both already become owners outside the books, even before they are entered in the land register. In order to make the right clear to everyone, an entry is also advisable here. If there is no entry, according to According to § 1500 ABGB or in another special constellation § 62 ff. GBG, the property can be acquired in good faith by a third party from the (then) unauthorized person in trust in the land register, which in turn means the loss of the possessed property.