Acquisition from unauthorized persons

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The Acquisition from parties (often simplistic: good faith acquisition ) is a civil matter Institute , which is recognized in many jurisdictions. It enables the acquisition of a right from an unauthorized person by virtue of legal appearance . Since this leads to a loss of rights for the real owner, he acquires compensation claims against the unauthorized seller. In terms of legal policy, the regulations on fair acquisition aim to protect legal transactions from massive reversals.

In Germany, the most important legal norms for acquisition from unauthorized persons can be found in the regulations on the acquisition of movable property in good faith in the narrower sense of the word in Sections 932 to 936 of the Civil Code (BGB), which are expanded by Section 366 of the Commercial Code (HGB) and in the Regulations on the public faith of the land register in §§ 891 to 893 BGB. These provisions are linked to various legal facts that identify the person making the right to be the owner of the right to be transferred. These include, for example, possession , power to procure possession or an entry in the land register. If the acquirer trusts the correctness of a legal certificate in a manner worthy of protection, he can honestly acquire it, provided that this is not excluded in individual cases due to overriding legal assessments.

History of origin

Roman law

In Roman law , only those rights could be transferred that were actually due to one . For this reason it was not possible to acquire property from an unauthorized person through a legal transaction . This legal principle is expressed with the Roman legal sentence “ Nemo plus iuris transferre potest quam ipse habet ”. This sentence means: "Nobody can transfer more rights to another than he himself has". If the owner lost possession of his property, he could therefore claim it from the current owner by virtue of his property by means of rei vindicatio . This possibility of comprehensive enforcement of property rights against legal transactions is known as the vindication principle.

From the point of view of legal traffic, the vindication principle led to uncertainties: if property and property fell apart for a long period of time, it was often difficult to identify who was the owner, especially with movable property . In everyday business dealings, the acquirer of rights was often unable to check whether the seller was actually entitled to transfer rights. In every sale, the prospective buyer was therefore faced with the risk of not acquiring any property due to the seller's lack of power of disposal. Because of this, the right of ownership was restricted by the institute of presidency . A person acquired ownership of a thing through possession if he had owned it for a longer period of time (possessio), had a reason to acquire it ( iusta causa ) and considered the previous owner to be authorized to dispose of it ( bona fides ). The prescription periods under Roman law were significantly shorter than today's: a one-year prescription period was valid for movable property and a two-year period for real estate. Prosecution was excluded from things that had been lost to their owner by furtum , for example through theft or embezzlement .

Germanic law

David Mevius

The Roman understanding of property as comprehensive and exclusive legal power over a thing was alien to Germanic law. As a result, it did not have a vindication principle. Whether something could be surrendered was instead determined by the trades . Anyone who exercised physical control over a movable thing had control over a movable thing. If someone lost something involuntarily, he could sue the current owner of the property for surrender because of his previous trades. If, on the other hand, he voluntarily entrusted the matter to someone else, he could only sue him for surrender, but not third parties. He could not derive any rights from his previous trade. In the event of a voluntary loss of property control, the principle of hand true hand applied . The lawyer David Mevius saw the purpose of this principle in the protection of legal transactions. In favor of legal security, the protection of the owner was weakened compared to Roman law.

Time of the law books

Sachsenspiegel manuscript from 1385 in the Duisburg City Library

The high Middle Ages were characterized by the emergence of numerous legal books . This includes, for example, the Sachsenspiegel from the early 13th century. Many European legal books took up the principle of hand true hand. It was widespread in the German-speaking area, in France , in Sweden , in the Dutch provinces and in England . In Norway, however , the hand-true-hand principle was not applied. There the owner of a thing could demand it from third parties; regardless of whether he had voluntarily or involuntarily lost his property.

Some legal systems that followed the hand-true-hand principle sought greater protection for the owner. For this purpose, they granted this a right of resolution. This right, which is particularly widespread in French and Dutch legal systems, entitles the owner to challenge the current owner of the property if he reimburses him for the purchase price.

Reception of Roman law

The discovery of Roman legal records in the Middle Ages led to a reception of Roman law . As a result, Roman principles were taken up in particular by continental European legal systems and linked to previous legal principles.

The influence of Roman law led to an expansion of the vindication by which a request for surrender could be based on property rights. In Saxony , Denmark and some southern German territories, the vindication principle superseded the previous hand-true-hand principle. In other areas, vindication was only recognized as a principle. There it was excluded to protect legal transactions if the owner had left the thing to someone else within the framework of a contractual relationship. Some German states justified this based on Roman law with the help of the presidency. Others were more oriented towards Germanic law and created regulations that were partially limited to a procedural exclusion of the surrender action, and partially also ordered an acquisition of property in good faith.

Codifications

Prussian general land law

Portrait medallion of Svarez on an information pillar in the Luisenstadt church park in Berlin-Mitte

The Prussian general land law of 1794 was viewed by its author Carl Gottlieb Svarez as a middle ground between Roman and Germanic law. In principle, it followed the vindication principle and dispensed with the distinction between voluntarily and involuntarily lost things known from Germanic law. For certain groups of cases, however, land law provided the possibility of acquiring property from an unauthorized person to protect legal transactions: in public auctions , in acquisitions from a merchant or the tax authorities , in the case of money and bearer papers .

In the remaining cases, the property remained with the owner, who could reclaim the item from the current owner. However, if the owner held the seller to be the owner during the acquisition process, he could refuse to hand it over to the actual owner until the owner reimbursed him for the purchase price that he had paid to the unauthorized seller.

Code civil

The emergence of the French Civil Code (CC) of 1804 was marked by a dispute regarding the acquisition of the unauthorized. In a first draft, the adherents of the vindication principle prevailed, granting the owner an unlimited right to surrender. Later, however, the other side gained the upper hand, which for reasons of traffic safety was guided by the hand-true-hand principle. As a result, Art. 2279 Paragraph 1 CC, which is still valid today, was created, which fundamentally excludes the vindication of movable property. The prevailing view is that the current owner also acquires ownership of the thing if he considers the seller to be the owner.

The exclusion of the vindication does not apply in accordance with Art. 2279 Para. 2 CC based on Germanic law for items that have been lost to their owner. These can be reclaimed by their owner within three years of being lost. According to Art. 2280 CC, however, in these cases the owner is entitled to a solution against the owner if he has acquired them from a merchant, at a fair or on a market.

General Civil Code

The Austrian General Civil Code (ABGB) of 1812 provides for the protection of legal transactions in Section 367 of the acquisition of property by unauthorized persons in good faith. This initially requires that ownership is to be transferred as part of a paid transaction. Furthermore, there must be a circumstance that justifies the purchaser's trust, which is particularly worthy of protection. Section 367 of the Austrian Civil Code names three constellations in which such trust exists: If someone purchases in the context of a public auction, he should be able to rely on the legality of the state institution involved. The same applies if someone buys from an entrepreneur in his ordinary business. Finally, a bona fide purchase can be made from a confidant of the owner, for example a tenant , borrower, custodian, precarist or buyer of retention of title . In this case, the owner is less worthy of protection than the purchaser, since he has given the thing out of hand himself. Honest acquisition based on the hand-true-hand principle is excluded if the property has been lost to its owner.

General German Commercial Code

The General German Commercial Code (ADHGB) of 1861 also made it possible for unauthorized persons to acquire property in order to protect commercial transactions in particular. When developing it, the authors followed the Austrian ABGB. According to Art. 306 Para. 1 ADHGB, things that were sold by an unauthorized merchant could be acquired in good faith. This did not apply to items that had been lost to their owners. According to Art. 307 ADHGB, securities could also be acquired in good faith by non-traders.

Civil Code

Based on the Roman vindication principle and the Prussian general land law, the 1st Commission convened in 1874 to draft the BGB fundamentally did not provide for the possibility of legal property acquisition by virtue of good faith; an exception should only apply to cash, bearer papers and publicly auctioned items, since legal transactions relied particularly on their ability to circulate. For other things, the honest purchaser was only granted a claim to a solution, by virtue of which he was allowed to refuse to hand them over to the owner until the latter had compensated him for the purchase price paid to the unauthorized seller. Different treatment of entrusted and lost things was expressly rejected, since the way in which property was lost is irrelevant for the purpose of honest acquisition - traffic protection.

In the later course of the discussions, the traffic protection guaranteed by this regulation was felt to be too weak. In order to strengthen trust in legal transactions and to simplify the processing of sales, the Commission therefore developed rules according to which legal positions can, under certain circumstances, be acquired by a third party even though the seller is not entitled to them. In doing so, she followed the decision of the 15th German Lawyers' Conference of 1880, which advocated a further acquisition in good faith. As a result, the Commission allowed property to be acquired in good faith. When developing the corresponding regulations, it was based on Art. 306 ADHGB.

The second commission , convened in 1890, essentially confirmed the regulations of the first commission and made only minor changes. It shifted the burden of proof in relation to the good faith in favor of the purchaser, eliminated his claim to a solution and clarified some provisions.

As a result, the BGB, which came into force on January 1, 1900, allows acquisition from an unauthorized person if this person appears to be the owner of the right to third parties by means of a legal certificate.

Civil Code

Article 714 of the Swiss Civil Code of 1912 provides for the acquisition of movable property in good faith. The requirements for this are based on those of property protection . Swiss law places higher demands on good faith: According to Article 3, Paragraph 2 of the Civil Code, the purchaser may not invoke his good faith if he did not exercise the necessary attention during the acquisition.

According to Art. 934, Paragraph 1 of the Civil Code, the owner of a lost item can reclaim it from any purchaser for five years. Art. 722 ZGB remains reserved. If the goods are acquired in the context of an auction or by a merchant, the owner can, in accordance with Art. 934 Paragraph 2 ZGB, only demand them against payment of the purchase price paid by the purchaser.

Current legal situation in detail using the example of German law

Scope of fair acquisition

In principle, only those who are authorized to do so can sell a right in rem. As a rule, this authorization is only available to the rights holder. The latter can, however, provide others with the power of disposal by authorizing them to dispose in accordance with Section 185 (1) BGB .

The regulations on fair acquisition allow, under certain conditions, the acquisition of a right in rem from a seller who lacks the power of disposal. This generally applies to those who are not the rights holder. But the right holder can also lose his power of disposal, for example through a statutory ( Section 135 BGB) or official ( Section 136 BGB) prohibition of disposal or through the opening of insolvency proceedings over his assets ( Section 81 InsO ). In these cases the possibility of honest acquisition is often limited. A fair acquisition of the debtor's objects in insolvency according to Section 81 (1) sentence 2 InsO is only possible for certain things that are kept in public registers. Statutory and official prohibitions of disposal can be overcome according to § 135 Abs. 2, § 136 BGB, if they serve to protect individuals (relative prohibitions of disposal). If, on the other hand, they serve the protection of the general public, for example Section 1365 Paragraph 1 Sentence 2 BGB and Section 40 Paragraph 2 KGSG , an honest acquisition is excluded (absolute prohibition of disposal).

The regulations on fair acquisition are ultimately of importance in civil proceedings for the scope of the legal force : Basically, a judgment according to Section 325 (1) ZPO only binds the parties involved in the proceedings and their legal successors . In principle, this also applies if a third party honestly acquires the disputed item from the unauthorized party to the proceedings during pending litigation, so that the legal force of the judgment against the seller also extends to the purchaser. According to Section 325 (2) ZPO, this does not apply if the acquirer is also honest with regard to the fact that the process is not pending.

General requirements for acquisition from unauthorized persons

Existence of a legal act

The acquisition of a right from an unauthorized person presupposes that, from the perspective of the acquirer, there is the impression that the seller is the owner of this right. Using the example of the acquisition of property, this means that the buyer must have an objective reason to believe that the seller is the owner. From the legislature's point of view, this legal certificate justifies denying the right holder the right to protect legal transactions. The possibility of honest acquisition is thus a form of legal liability in favor of legal transactions. This is generally considered the property guarantee of Art. 14 para. 1 of the Basic Law, as the stock interests of the right holder is limited by the also constitutionally guaranteed protection of legal relations in its reliance on the warrant. The regulations on fair acquisition are therefore proportionate content and limitation provisions of property.

A legal certificate can be generated through possession, power to procure possession, certificate of inheritance or an entry in the land register. These legal facts can be given above all with regard to rights to things, which is why an honest acquisition from the unauthorized person is particularly relevant for these. In the case of claims , on the other hand, it is usually excluded, since a sufficiently reliable legal certificate exists for these only in exceptional cases - for example in the case of notarization according to § 405 BGB.

The law provides several mechanisms to protect the true right holder from legal liability. For the legal claim holder possession and the power to procure possession occurs through a restriction of the protection of honesty: According to § 935 Abs. 1 BGB, an object cannot be acquired honestly if the owner has involuntarily lost its direct possession. As a result, legal liability is limited by an attribution principle: apart from several exceptions in Section 935 (2) of the German Civil Code (BGB), honest acquisition is only possible where the owner has voluntarily given up his direct possession. This expresses the risk principle, which is an important basis for legal liability. According to this, the owner is not worthy of protection if he has created the risk through voluntary surrender of ownership that the purchaser will consider someone else for the owner. Therefore, one expects him to lose property to the honest buyer. The situation is different with the certificate of inheritance and the entry in the land register, in which the law waives an attribution criterion and thus establishes a pure legal liability. This is the result of the particular reliability of these legal entities created by the state. However, the owner receives protection through the possibility of destroying the legal certificate, for example by objecting to an entry in the land register according to § 899 BGB.

Honesty of the acquirer

The downside of the legal appearance on the seller's side is the honesty of the purchaser. The requirements for honesty depend on the strength of the legal certificate: in furniture law, which is linked to ownership of a comparatively weak legal certificate, there is a lack of honesty if the purchaser knows the missing property of the seller or is grossly negligent in misjudging it. In real estate law, in which the legal certificate results from the land register, the purchaser is only dishonest if he knows that it is incorrect.

Acquisition through legal and traffic business

The acquisition of a right from the unauthorized person also requires that the seller and buyer agree that the latter should acquire the right to the thing. This agreement must be made in the context of a legal transaction, since the honest acquisition serves to protect business transactions. Such an acquisition is therefore excluded in the event of a transfer of rights by virtue of law, for example in the case of an inheritance , as well as in the case of acquisition by virtue of an act of sovereignty , for example through foreclosure under § 816 ZPO.

After all, the acquisition business must be a transport business. This is not the case when the seller and the purchaser are different from a legal point of view, but identical from a financial point of view. This is the case, for example, when the sole shareholder and managing director of a limited liability company (GmbH) wants to acquire ownership of something that supposedly belongs to the GmbH. In this constellation, because of the economic identity, there is no trust worthy of protection on the part of the purchaser, which could justify reducing the owner's legal status. Even with transactions that anticipate a succession , there is no transport transaction . Because here the acquirer should not be in a better position than he would in the case of inheritance, in which an honest acquisition is not possible due to the lack of a legal transaction.

Acquisition of ownership of movable property according to §§ 932–936 BGB

The acquisition of ownership of movable property from an unauthorized person is based on § 932 to § 936 BGB. These rules apply analogously to the transfer of the entitlement right , since this represents a preliminary stage of the property right in legal terms.

Legal act

The requirements for the legal certificate required to acquire property in good faith are regulated in § 932 to  § 934 BGB, corresponding to the types of transfer of § 929 to § 931 BGB.

Section 932 (1) BGB

Section 932 (1) sentence 1 of the German Civil Code (BGB) refers to Section 929 (1) of the German Civil Code (BGB), which regulates the acquisition of property through agreement and handover as a basic case for the sale of movable property. As part of the transfer, the seller gives up his ownership of the thing completely and transfers it to the buyer. From the point of view of legal transactions, the fact that the seller owns the thing justifies the legitimate expectation that he is its owner; this is the basis of the presumption of ownership in Section 1006 (1) sentence 1 of the German Civil Code. For this reason, Section 932, Paragraph 1, Sentence 1 of the German Civil Code (BGB) is linked to the transfer as a legal act.

In principle, the purchaser must obtain possession from the seller, otherwise he has no sufficient reason to trust his property. In exceptional cases, however, the handover by a third party is sufficient in the case of bidding . Such a purchase occurs, for example, when a dealer purchases a raw material from a supplier, which he then resells directly to a buyer. To simplify the process, the dealer instructs the supplier to deliver directly to his buyer. As a result, the dealer does not acquire ownership of the thing, so that he cannot hand it over. However, he can still give the purchaser the possession of the object of sale through the instruction of the supplier. With this power of ownership of the seller, there is a legal certificate that is comparable to that of the transfer. For this reason, according to the general opinion, it is sufficient for the acquisition of property according to § 932 Paragraph 1 Sentence 1 BGB. This also applies to the opposite case, in which the seller does not hand over the item to the purchaser, but to the person responsible for the property. If you combine both cases, transfer of ownership is even possible, in which neither the seller nor the purchaser ever have direct possession.

Section 932, Paragraph 1, Sentence 2 of the German Civil Code governs acquisition in good faith within the framework of brevi manu traditio in accordance with Section 929, Sentence 2 of the German Civil Code. According to this, property can already be acquired by agreement. The prerequisite for this is that the purchaser already has possession of the item to be sold at the time of the agreement. Here too, the legal certificate consists in the transfer of ownership by the seller. A case of brevi manu traditio is when someone first rents something and then purchases it from the landlord.

Section 933 BGB

Section 933 BGB is the relevant regulation if an item is to be sold in accordance with Section 930 BGB. According to § 930 BGB, the handover of the thing can be replaced by the agreement of a property brokerage relationship , by virtue of which the sellerretains direct ownership of the thing, but exercises it on behalf of the purchaser. This becomes the owner and indirect owner himself. An example of a brokerage relationship is the loan agreement ( § 598 BGB): The borrower exercises direct physical control over the item, but does so for the lender, who is an indirect owner due to the lack of access.

An honest acquisition according to § 933 BGB presupposes that the purchaser receives direct possession of the thing from the seller. This legal norm thus ties in with the same legal certificate as Section 932 (1) BGB. This is based on the fact that the mere agreement of a constitution of possession could not establish a sufficient legal certificate, since in this case ownership would remain with the seller. As a rule, a bona fide acquisition of security property is excluded, since the seller retains direct ownership of the sold item.

Section 934 BGB

§ 934 BGB refers to § 931 BGB, according to which an item can be acquired that is in the direct possession of a third party. In this case, the transfer of ownership takes place through an agreement on the transfer of ownership between the seller and the purchaser as well as the assignment of the surrender claim to which the seller is entitled to the third party. Such a constellation exists, for example, when a landlord wants to transfer ownership of a rented property to a third party without involving the tenant in the process. The regulation of § 934 BGB distinguishes between two case constellations:

If the third party owns for the seller, the acquisition of property takes place in that the seller transfers his claim to surrender against the third party to the buyer. In contrast to Section 933 of the German Civil Code, it is sufficient if the purchaser only acquires indirect possession. Some legal scholars rate this fact as inappropriate, as it can lead to discrepancies. This applies in particular if several rules of good faith coincide because an item has been sold several times by an unauthorized person. This was the case in the milling machine case decided by the Federal Court of Justice in 1968 : There an item was sold under retention of title , initially in accordance with Section 933 of the German Civil Code and later in accordance with Section 934 Alt. 1 1 BGB transferred without ever being transferred to one of the acquirers. While the first transfer failed due to lack of transfer, the second succeeded because § 934 Alt. 1 1 BGB does not require handover. What is criticized about this result is that even the weak legal form of indirect ownership according to the conception of § 934 Alt. 1 BGB was sufficient to displace the seller with reservation of title from his position of ownership, although both the owner and the purchaser equally trusted in the conveyance of ownership. In order to correct this result, arguments were developed in the literature that the effect of § 934 Alt. 1 BGB help to limit, for example the doctrine of secondary ownership. The jurisprudence has so far rejected a restriction of the norm because it is not compatible with the system of the BGB: The legislature deliberately has different requirements for §§ 933, 934 Alt. 1 of the German Civil Code (BGB), since the first-mentioned norm creates new ownership, while in the case of § 934 Alt. 1 BGB existing indirect possession is transferred to the purchaser.

The second alternative of Section 934 of the German Civil Code (BGB) comes into play if the seller is not the owner of the item to be transferred but has a legal claim to surrender. This applies, for example, to claims arising from the law of enrichment or tort law, since in these cases no intermediary relationship can arise. The case that the assigned right to surrender does not actually exist also falls within the scope of this variant. In this case, the purchaser becomes the owner when the immediate owner of the thing gives him possession of it.

Good faith of the purchaser, § 932 Abs. 2 BGB

Basic requirements

According to Section 932 (2) of the German Civil Code, the purchaser is not in good faith if he either knows that the seller is not the owner of the item or negligently misjudges this. The negative wording of the provision places the burden of proof on the owner of the purchaser in bad faith.

Anyone who disregards customary due diligence to a particularly serious extent acts grossly negligent. The acquirer must therefore fail to recognize circumstances that would impose themselves on any general viewer. Such circumstances could, for example, represent the transfer of ownership in an unusual location or a sale that is significantly below value. Gross negligence is also obvious if someone wants to acquire property from an overindebted person without making sure, despite knowledge of the overindebtedness, whether the thing has not already been assigned to a third party as security. When purchasing a used vehicle, case law usually assumes bad faith if the purchaser does not use the registration certificate Part II (commonly: vehicle registration document ) to ensure that the seller is the owner. In the case of new vehicles, such an inspection obligation can arise if there are additional indications that raise serious doubts about the legal position of the seller.

If the purchaser does not act himself, but can be represented , it depends on the good faith of the representative according to § 166 Abs. 1 BGB. As an exception, in accordance with Section 166 (2) BGB, the level of knowledge of the person represented is decisive if the latter issues instructions to the representative. This is to prevent a bad believer from abusing Section 166 (1) of the German Civil Code (BGB) by being represented by a person of good faith.

The relevant point in time for good faith is when the acquisition of rights is completed. This is usually the case when the thing is handed over. If a handover is unnecessary, in the case of § 929 sentence 2 BGB the focus is on the agreement and in the cases of §§ 933, 934 BGB on the act of assignment or acquisition of ownership. In the case of the transfer of ownership of an item under retention of title, the point in time at which the purchaser obtains his entitlement to ownership in accordance with Section 161 (1) sentence 1 BGB is decisive .

Commercial law modification through § 366 HGB

→ Main article : “Acquisition in good faith” in the commercial transaction article

It is common among merchants not to sell goods as the owner, but only as the person entitled to dispose of them. This is the case, for example, in the context of a sales commission or an extended retention of title , in which third-party goods are sold with the authorization of the owner. Against this background, the buyer is regularly aware that the seller is not the owner, so that he is in bad faith within the meaning of Section 932 (2) BGB. In order to improve its protection, Section 366 (1) of the Commercial Code (HGB) reduces the requirements for good faith for purchases from a merchant: instead of good faith in the property of the seller, good faith in his power of disposal is sufficient.

Exclusion of purchase in good faith, § 935 BGB

Principle, § 935 Paragraph 1 BGB

Schematic representation of the effect of Section 935 (1) BGB

Section 935 (1) BGB prevents the purchase of an item in good faith if it has been stolen from the owner, if he has lost it or if he has lost it in any other way. What these three variants have in common is that the owner involuntarily forfeits the direct possession, so that the legal certificate existing in favor of the seller cannot be attributed to him. For this reason, it is exceptionally worthy of protection than legal traffic. The historical roots of Section 935, Paragraph 1 of the German Civil Code (BGB) lie in Germanic law, which only grants the owner a right to surrender against third parties for lost items.

For reasons of traffic protection, the actual will of the owner is decisive for the assessment of the loss. Therefore, if an item is given away due to deceit or error, there is a voluntary relinquishment of possession, so that Section 935 (1) BGB does not apply. A business incompetents now be able to make a rule no legally relevant will to dereliction why he even gets lost one thing if he gives away voluntarily. If someone as an indirect owner owns something for the owner, for example as a tenant, according to § 935 Paragraph 1 Sentence 2 BGB, it depends on his will. According to the prevailing opinion, it is different with the property servant : Since he has no property of his own according to § 855 BGB, the property will of his owner is decisive. If someone other than the heir takes possession of an inheritance object, the heir loses it, as the heir owns the entire estate in accordance with § 857 BGB .

If a legal acquisition of property fails due to § 935 Paragraph 1 BGB, the purchaser has the option of acquiring property by perception in accordance with § 937 Paragraph 1 BGB. This prevents property and possessions from falling apart permanently, thereby strengthening legal certainty. Prescription requires that the person holding the thing has owned the thing for ten years and is in good faith with regard to his supposed property. Because of the far-reaching traffic protection through §§ 932-934 BGB, which cause an immediate transfer of ownership, the scope of the acquisition is limited in practice: It is particularly possible in cases in which transfer of ownership in accordance with the aforementioned regulations does not succeed, for example because of loss.

Exceptions to Section 935 (2) BGB

According to Section 935 (2) BGB, the exclusion of the purchase in good faith of lost items does not apply if the item sold is cash or bearer paper. This rule is based on the fact that legal traffic has a special interest in the unhindered use of the objects mentioned. Therefore, even in the event of the involuntary loss of possession of one of the items mentioned, the law attaches greater importance to the protection of traffic than to the protection of the owner and dispenses with the attribution criterion of Section 935 (1) BGB.

Section 935 (2) of the German Civil Code also permits the purchase of a lost item in good faith if it is acquired in a public auction within the meaning of Section 383 (3) sentence 1 of the German Civil Code. With this regulation, the legislature wanted to protect trust in the auction procedure carried out under sovereign supervision. This exception to Section 935 (1) BGB was created on the basis of several regulations from the time of the codifications.

Acquisition free of encumbrances in good faith, § 936 BGB

If someone acquires something from an authorized person or an unauthorized person, he is exposed to the risk that this object is encumbered by the rights of third parties. Such encumbrances, which can significantly reduce the value of the acquired item for its new owner, represent, for example, usufructuary rights and liens . Section 936 (1) BGB limits this risk based on Art. 306 (2) and 4 ADHGB in favor of the purchaser, by lifting such burdens under certain conditions.

In order for the effect of Section 936 (1) BGB to take effect, someone must acquire ownership of a thing on which the right of a third party rests. Furthermore, the purchaser must be in good faith to the effect that the thing is not encumbered by a third party right: He must therefore neither have knowledge of the encumbrance of the thing with a third party right, nor can he misjudge its existence in a grossly negligent manner. Knowledge is also given if the purchaser knows about the burden but is wrong about the amount. When acquiring an item that is encumbered with a landlord's lien ( § 562 BGB), the prevailing opinion already affirms grossly negligent knowledge if the item has been visibly brought into a rented space and the purchaser is aware of the tenancy. This is based on the fact that only a few requirements have to be met for such a lien to arise. This is why the existence of a lien is so likely that the purchaser has to inquire whether a lien exists.

If the acquisition of property already requires that the thing be handed over to the purchaser, there are no additional requirements for the acquisition in good faith, free from encumbrances, since the acquisition of property represents a sufficiently strong legal appearance. In the case of acquisitions which, on the other hand, do not require a handover, the purchaser must also acquire possession of the item, since only then does the purchaser's good faith become worthy of protection.

If the requirements of Section 936 (1) of the German Civil Code (BGB) are met, any rights of third parties to the purchased item expire. An exception to this is made in § 936 Paragraph 3 BGB: If the right in the case of an acquisition according to § 931 BGB belongs to the direct or indirect owner of the thing, it is not affected by the acquisition of property in good faith. Because this is itself protected by the legal certificate of possession.

Analogous to § 935 BGB, the purchase in good faith unencumbered is excluded if the owner of the onerous right has lost the thing. This analogy is based on the consideration that the owner of a right covered by Section 936 of the German Civil Code (BGB) is comparable to the owner.

Repurchase from unauthorized persons

There is disagreement in the teaching on the question of how a purchase in good faith is reversed. A reverse transaction can occur, for example, if someone acquires in good faith during a purchase , but later withdraws from this contract due to a material or legal defect . In accordance with Section 346 (1) of the German Civil Code (BGB), this obliges the purchaser to transfer the acquired property back to the seller. As a result, if the law is strictly applied, the unauthorized seller can acquire ownership of the purchased item that he had previously sold as an unauthorized person. As a result, the reversal will give him a better position than he had previously held.

Some voices disapprove of this as unfair and instead assume that the original owner will acquire ownership of the thing through the reversal. This is justified, on the one hand, by the fact that an acquisition of property by the unauthorized person, who may have been in bad faith from the start, produced an inadequate result. In addition, Sections 932–934 BGB only aim to protect the purchaser in good faith, but not that of the unauthorized seller. This should therefore not benefit from the rules of good faith acquisition.

According to the opposite view, which also represents the case law, the unauthorized person acquires property from his contract partner. This results from the relativity of the obligations . According to this, rights and obligations from an obligation generally only apply between the parties, but not towards third parties. Since the former owner of the thing is not involved in the reversal obligation, his legal position cannot be influenced by this. In addition, an acquisition by the previous owner violates the principle of abstraction . Therefore, the former owner is only entitled to a claim for damages against the unauthorized seller, who is based on restitution in kind in the form of transfer back.

Acquisition of rights to immovable property according to §§ 892, 893 BGB

According to § 892 BGB, all rights can be acquired by an unauthorized person that become effective through entry in the land register. These include, in addition to the real estate property such as the easement , the mortgage , the mortgage and the reservation . § 893 BGB extends this regulation to other dispositions, such as the change of rank according to § 880 BGB.

Existence of a legal act: Entry of the seller in the land register

Legal function of the land register

For rights to immovable property, the land register is the legal record holder: In favor of the person who is registered as the owner of a right, the presumption that he is actually the owner of the right acts according to § 891 BGB. This public belief is based on the strictly formalized land register procedures, which are regulated in the land register order (GBO) and are intended to guarantee an error-free registration practice for the land register. As a result, an honest acquisition in accordance with Section 892, Paragraph 1, Sentence 1 of the German Civil Code (BGB) requires that the seller is entered in the land register as the owner of the rights.

The scope of application of § 892 BGB is extended to the case of inheritance by § 40 GBO: If the testator erroneously registered in the land register as the owner of a property right dies, the heir takes his place in accordance with § 1922 (1) BGB. If the latter sells the property to a third party, an honest acquisition would not be considered according to § 892 BGB if the testator is still entered in the land register as the owner of the rights. However, § 40 GBO enables the heir to be acquired honestly by declaring it unnecessary for the heir to be registered.

Section 899a of the German Civil Code, introduced on October 1, 2009, extends the presumption of correctness of the land register to the registered partners of a civil law partnership (GbR). If a GbR acquires a right, its shareholders are to be entered in the land register in accordance with Section 47 (2) GBO. § 899a BGB assumes that the shareholders specified in the land register are the only shareholders in the registered GbR. This assumption is important if shareholders subsequently leave or join the GbR, but this change in membership is not entered in the land register. If a person who is wrongly entered as a wrongly registered shareholder in the land register is acting legally for the GbR, the application of § 899a BGB can lead to the GbR being validly represented. § 899a BGB protects the good faith in a power of representation.

Destruction of the legal appearance

The presumption of correctness of § 891 BGB is invalidated in accordance with § 892 Paragraph 1 Clause 2 BGB by the fact that an objection is entered in the land register in favor of the beneficiary in accordance with § 899 BGB . The objection is against the legal situation currently entered in the land register. It destroys the legal certificate of the land register, regardless of whether the purchaser inspects the land register and thus learns from it. However, the entry of an objection can fail in individual cases. The prevailing opinion today argues - turned against a decision of the Reichsgericht - that a contradiction can go wrong even within a sales chain. This refers to a case in which the book owner first orders a mortgage for the dishonest and later has an objection to the property shown on behalf of the real owner entered. Thereafter, the dishonest mortgagee assigns the mortgage to an honest third party who takes action against the meanwhile registered true owner, which he succeeds on the basis of honest acquisition.

The legal certificate in the land register is also destroyed if there is a double booking. Such a right exists if a right is entered in the land register several times in favor of different persons. In this case, the land register is clearly inconsistent, which is why there can be no legitimate trust in its correctness.

Finally, the legal certificate of the land register with regard to securitized liens in accordance with § 1140 BGB is destroyed by the fact that the letter and land register contain contradicting information.

Honesty of the acquirer

Furthermore, the purchaser must consider the seller to be the owner of the sold right. This is the case if he has no positive knowledge of the inaccuracy of the land register . In contrast to the purchase of movable property in good faith, gross negligence does not prevent the acquisition. Thus, the purchaser of an immovable property is not obliged to investigate accordingly if there are doubts about the correctness of the land register. This better position of the purchaser in comparison to the acquisition of movable property in good faith is due to the public belief of the land register, which is a more powerful legal entity than property.

As with the acquisition of movable property, the acquirer's honesty must continue until the last act of acquisition, i.e. regularly until it is entered in the land register. Since delays on the part of the land registry should not affect the applicant to the detriment of the applicant, the point in time of the application is decisive in accordance with Section 892, Paragraph 2 of the German Civil Code (BGB), if only the acquirer is not entered in the land register.

Acquisition of a lien according to § 1207 BGB, § 366 Abs. 3 HGB

In principle, a contractual lien in accordance with § 1205 , § 1206 of the German Civil Code (BGB) can only be established on movable items that are the property of the pledger. As an exception, such a right can also be ordered for items that do not belong to the pledger in accordance with Section 1207 of the German Civil Code. The requirements correspond to those of the bona fide acquisition of movable objects according to §§ 932–935 BGB. Therefore, a transaction, a legal certificate based on the possession and good faith on the part of the purchaser are required. Because of the accessory nature of the lien, the purchaser must also be entitled to a claim against the pledger to be secured. If these conditions are met, the lien on the thing arises and acts against its owner. The bona fide creation of a lien on objects that have been lost to their owner is excluded.

Pursuant to Section 366 (3) of the German Commercial Code ( HGB) , the liens provided by law can also be acquired in good faith, such as those of the commission agent ( Section 397 of the German Commercial Code) or the carrier ( Section 440 of the German Commercial Code). In the opinion of case law, however, the acquisition of legal liens under the BGB in good faith is not possible, as Section 1207 BGB in accordance with Section 1257 BGB does not apply to the creation of such liens. Parts of the literature talk, in contrast, for an acquisition in good faith statutory liens - in particular in § 647 regulated BGB lien of the independent contractor - made by 3 HGB draw an analogy to § 366 para..

Acquisition by inheritance according to § 2366 BGB

Certificate of inheritance

The control technology of the certificate of inheritance differs from that of other legal entities: According to § 2365 BGB it is assumed that the heir is who is identified as such in the certificate of inheritance; there is therefore a public belief as to the correctness of the certificate of inheritance. Unlike possession and the land register, the certificate of inheritance does not make any statement about the seller's right of disposal. Rather, it leads to the fact that the acquisition of the non-heir designated in the certificate of inheritance (false heir) is treated like the acquisition of the true heir. As a result, third parties, according to § 2366 BGB from that honestly estate objects purchase, which is falsely reported by the inheritance as heir. This is done in accordance with the provisions that are relevant for the transfer of the respective estate. According to § 2366 in connection with § 929 BGB movable and in connection with § 873, § 925 BGB immovable things can be acquired. Claims can be acquired from the dummy heir according to § 2366, § 398 BGB. Section 2366 of the German Civil Code (BGB) can also be combined with other provisions on acquisition from unauthorized persons, which enables the acquisition of things that only appear to be owned by the testator.

In order for the acquisition to be successful by virtue of a certificate of inheritance, the acquirer must be honest. He is therefore not allowed to know about the inaccuracy of the certificate of inheritance or that the probate court has reclaimed the certificate of inheritance. According to prevailing opinion, § 2366 BGB protects trust in the abstract correctness of the certificate of inheritance, which is why its effect occurs even if the purchaser has no knowledge of the certificate of inheritance.

According to the prevailing opinion, acquisition by virtue of a certificate of inheritance is excluded if there are several certificates that contradict each other in terms of content, as the presumption of Section 2365 BGB is then refuted.

According to § 2368 BGB, the regulations on the public faith of the certificate of inheritance apply accordingly to the certificate of execution of the will, according to § 2370 BGB to the declaration of death .

Acquisition of a GmbH share in accordance with Section 16 (3) GmbHG

Since the reform of the GmbH law from 1 November 2008 , according to § 16 para. 3 GmbHG shares are acquired a limited liability company by a person not entitled or encumbered by a lien. This regulation shows parallels to the acquisition of real estate rights.

Section 16 (3) GmbH is linked to the objective legal form of the list of shareholders submitted to the commercial register . It assumes that the seller of the GmbH share is incorrectly entered as its owner in the list of shareholders. This error must be attributable to the true owner of the unit. This requirement, which is more stringent than Section 892 of the German Civil Code, limits legal liability in a manner similar to that in the case of a fair acquisition according to Sections 932–936 of the German Civil Code. It is intended to compensate for the fact that the legal form of the privately held list of shareholders is weaker than that of the land register. If there is no attributability, a fair acquisition is only possible if the list has been incorrect for more than three years. The holder of the share can destroy the legal certificate of the list of shareholders by entering an objection.

Finally, the acquirer must be in good faith with regard to the legal certificate. This is lacking if he knows the incorrectness of the list of shareholders or is grossly negligent in misjudging it.

Claims of the former right holder

If someone loses a legal position through honest acquisition, he is entitled to various compensation claims against the seller. These can be systematized according to their objectives: On the one hand, the former right holder can demand compensation for the loss of his right. On the other hand, he may have an interest in demanding the proceeds from the disposal from the person disposing, for example because this exceeds the value of the thing.

damages

If there was a contractual relationship between the seller and the previous owner of the right, a claim may arise from the breach of a contractual obligation. For example, the landlord can demand compensation from the tenant for breach of the contractual obligation to surrender if the tenant sells the rental property to an honest person. In addition, the person concerned can assert a claim from management without an order . This legal obligation arises when someone consciously becomes active in a foreign interest group; for example by disposing of a foreign right. Since this disposition is made without the will of the legal owner, the seller owes compensation according to § 678 BGB. Further claims for damages result from tort law .

Revenue release

If there was a contractual obligation between the parties, the former owner of the rights can demand the proceeds of the item via § 285 BGB. A similar claim arises from management without an order, if the person disposing knew that he was selling a third-party item. According to a view that is shared by case law, the former right holder can also demand that the seller surrender the proceeds from the resale via the enrichment law norm of Section 816 (1) sentence 1 BGB.

Special case: free sale

If the sale is free of charge, the previous owner of the right can, as an exception, take action against the purchaser: According to Section 816 (1) sentence 2 of the German Civil Code, he can request the surrender of the item. This regulation is based on the consideration that the free purchaser is less worthy of protection than a paid purchaser, since he has not provided anything in return for the acquisition of property. Therefore, he does acquire a right in rem, but this can be reclaimed from its previous owner. Exceptionally, the in rem good faith provisions are corrected according to the law of obligations. As a result, the free purchaser is worse off than the paid purchaser.

While the Reichsgericht was already considering equating the free acquisition with the unlawful acquisition, the Federal Court of Justice did not agree to a corresponding application of Section 816 (1) sentence 2 BGB, since the acquirer actually made a sacrifice of property, albeit without a legal reason .

literature

• Jörn Engstfeld: The acquisition of the unauthorized . Tectum-Verlag, Marburg 2002, ISBN 3-8288-8362-1 .
• Johannes Hager: Traffic protection through honest acquisition . CH Beck, Munich 1990, ISBN 3-406-34119-5 .
• Birgit Imbusch: The bona fide legal transaction acquisition of stolen things in German law . Lit, Münster 1999, ISBN 3-8258-4417-X .
• Jan Lieder: The legal succession . Mohr Siebeck, Tübingen 2015, ISBN 978-3-16-152911-5 .
• Frank Peters: The withdrawal of ownership of movable property through purchase in good faith . JCB Mohr, Tübingen 1991, ISBN 3-16-145850-8 .
• Lutz Wittkowski: The theory of the transport business . Duncker & Humblot, Berlin 1990, ISBN 3-428-07039-9 .

Individual evidence

1. ↑ Jürgen Oechsler: § 932 Rn. 1. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 . Harry Westermann, Karl-Heinz Gursky, Dieter Eickmann: Property law . 8th edition. CF Müller, Heidelberg 2011, ISBN 978-3-8114-7810-7 , § 45 Rn. 15th
2. ↑ Dig. 50, 17, 54
3. ↑ nemo plus iuris in alium transferre potest quam ipse habet - legal dictionary. Retrieved March 19, 2019 . 
4. ^ Hans Josef Wieling: Property Law . 2nd Edition. tape 1 : Property, possession and rights to movable property . Springer, Berlin 2006, ISBN 3-540-29869-X , p. 361 .
5. ↑ Werner Hinz: The development of driving in good faith in European legal history . In: Journal for European Private Law 1995, p. 398 (399). Hans Josef Wieling: Property law . 2nd Edition. tape 1 : Property, possession and rights to movable property . Springer, Berlin 2006, ISBN 3-540-29869-X , p. 360-361 .
6. ↑ Dirk Olzen: On the history of good faith acquisition . In: Jura 1990, p. 505 (506).
7. ^ Hans Josef Wieling: Property Law . 2nd Edition. tape 1 : Property, possession and rights to movable property . Springer, Berlin 2006, ISBN 3-540-29869-X , p. 360 .
8. ↑ Fabian Klinck: Property Law Rn. 145. In: Michael Martinek (Ed.): Staudinger BGB: Cornerstone of civil law . 5th edition. De Gruyter, Berlin 2014, ISBN 978-3-8059-0784-2 .
9. ↑ Werner Hinz: The development of driving in good faith in European legal history . In: Journal for European Private Law 1995, p. 398 (410).
10. ^ Hans Josef Wieling: Property Law . 2nd Edition. tape 1 : Property, possession and rights to movable property . Springer, Berlin 2006, ISBN 3-540-29869-X , p. 362 .
11. ↑ ^{a b c} Werner Hinz: The development of driving in good faith in European legal history . In: Journal for European Private Law 1995, p. 398 (400-402).
12. ↑ Werner Hinz: The development of driving in good faith in European legal history . In: Journal for European Private Law 1995, p. 398 (405).
13. ^ Hans Josef Wieling: Property Law . 2nd Edition. tape 1 : Property, possession and rights to movable property . Springer, Berlin 2006, ISBN 3-540-29869-X , p. 362-363 . Werner Hinz: The development of driving in good faith in European legal history . In: Journal for European Private Law 1995, p. 398 (405-411). Dirk Olzen: On the history of buying in good faith . In: Jura 1990, p. 505 (510).
14. ↑ Werner Hinz: The development of driving in good faith in European legal history . In: Journal for European Private Law 1995, p. 398 (416).
15. ^ ^{A b} Hans Josef Wieling: Property Law . 2nd Edition. tape 1 : Property, possession and rights to movable property . Springer, Berlin 2006, ISBN 3-540-29869-X , p. 363-364 .
16. ↑ Werner Hinz: The development of driving in good faith in European legal history . In: Journal for European Private Law 1995, p. 398 (415).
17. ^ ^{A b c d} Hans Josef Wieling: Property Law . 2nd Edition. tape 1 : Property, possession and rights to movable property . Springer, Berlin 2006, ISBN 3-540-29869-X , p. 364 .
18. ↑ Werner Hinz: The development of driving in good faith in European legal history . In: Journal for European Private Law 1995, p. 398 (415-416).
19. ^ Hans Josef Wieling: Property Law . 2nd Edition. tape 1 : Property, possession and rights to movable property . Springer, Berlin 2006, ISBN 3-540-29869-X , p. 406 .
20. ↑ Werner Hinz: The development of driving in good faith in European legal history . In: Journal for European Private Law 1995, p. 398 (421).
21. ↑ ^{a b c} Jürgen Oechsler: § 932 Rn. 1. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 .
22. ^ Hans Josef Wieling: Property Law . 2nd Edition. tape 1 : Property, possession and rights to movable property . Springer, Berlin 2006, ISBN 3-540-29869-X , p. 365 .
23. ^ Fritz Baur, Jürgen Baur, Rolf Stürner: Property Law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 4 Rn. 15–16, § 52 marginal no. 9. Ralph Weber: Property Law I: Movable Property . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-0654-9 , § 9 marginal no. 3. Jürgen Oechsler: § 932 Rn. 2-5. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 .
24. ^ Hans Josef Wieling: Property Law . 2nd Edition. tape 1 : Property, possession and rights to movable property . Springer, Berlin 2006, ISBN 3-540-29869-X , p. 366 .
25. ↑ Jan Lieder: The legal succession . Mohr Siebeck, Tübingen 2015, ISBN 978-3-16-152911-5 , pp. 449 .
26. ^ Reinhard Zimmermann, Rolf Knütel, Jens Peter Meincke: Legal history and private law dogmatics . CF Müller, Heidelberg 1999, ISBN 978-3-8114-9915-7 , pp. 593 . Jürgen Oechsler: § 932 Rn. 2-3. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 .
27. ^ Fritz Baur, Jürgen Baur, Rolf Stürner: Property Law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 64 Rn. 58.
28. ↑ Constantin Kruse: From practice: acquisition of land in the context of seller insolvency . In: Juristische Schulung 2010, p. 974 (975).
29. ^ Dieter Medicus, Jens Petersen: Civil law . 26th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5462-8 , Rn. 537.
30. ↑ Oliver Schmitt: The sale of the disputed matter in the ZPO . In: Journal for Legal Studies 2014, p. 154.
31. ^ ^{A b} Jan Wilhelm: Property Law . 6th edition. De Gruyter, Berlin 2019, ISBN 978-3-11-059639-7 , Rn. 927.
32. ↑ Jan Lieder: The legal succession . Mohr Siebeck, Tübingen 2015, ISBN 978-3-16-152911-5 , pp. 459 f . Frank Peters: The withdrawal of ownership of movable property through purchase in good faith . JCB Mohr, Tübingen 1991, ISBN 3-16-145850-8 , pp. 39 . Johannes Hager: Traffic protection through honest acquisition . CH Beck, Munich 1990, ISBN 3-406-34119-5 , p. 75-79 . Henrik Röber: Acquisition of GmbH shares in good faith . De Gruyter, Berlin 2011, ISBN 978-3-11-024879-1 , p. 14-24 . Jan Lieder : The doctrine of the ineffective legal certificate holder . In: Archive for civilist practice 2010, p. 857 (861).
33. ↑ Peter Kindler, David Paulus: Honest acquisition - foundations and basic principles . In: Legal training 2013, p. 393.
34. ^ Harry Westermann, Karl-Heinz Gursky, Dieter Eickmann: Property Law . 8th edition. CF Müller, Heidelberg 2011, ISBN 978-3-8114-7810-7 , § 45 Rn. 10. In detail on the risk principle Claus-Wilhelm Canaris: The trust liability in German private law . CH Beck, Munich 1971, ISBN 3-406-02906-X , p. 479-490 .
35. ↑ Harry Westermann: The basics of the protection of good faith . In: Juristische Schulung 1963, p. 1 (6); Peter Kindler, David Paulus: Honest Acquisition - Foundations and Basic Principles . In: Juristischer Schulung 2013, p. 393 (395); Harry Westermann, Karl-Heinz Gursky, Dieter Eickmann: Property law . 8th edition. CF Müller, Heidelberg 2011, ISBN 978-3-8114-7810-7 , § 45 Rn. 10.
36. ↑ Jan Lieder: The legal succession . Mohr Siebeck, Tübingen 2015, ISBN 978-3-16-152911-5 , pp. 522 .
37. ↑ Peter Kindler, David Paulus: Honest acquisition - foundations and basic principles . In: Juristischer Schulung 2013, p. 393 (396).
38. ^ Hans Josef Wieling: Property Law . 5th edition. Springer, Berlin 2007, ISBN 978-3-540-37403-9 , pp. 117-118 .
39. ↑ Caroline Meller-Hannich: § 932 Rn. 3. In: Alfred Keukenschrijver, Gerhard Ring, Herbert Grziwotz (eds.): Nomos Commentary BGB: Property Law . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1103-1 . Jürgen Kohler: Protection of good faith in property law when purchasing by law? In: Jura 2008, 481.
40. ^ BGH, judgment of March 11, 1991, II ZR 88/90 = Neue Juristische Wochenschrift 1991, p. 1415 (1417). BGH, judgment of April 8, 2015, IV ZR 161/14 = Neue Juristische Wochenschrift 2015, p. 1881. Wolfgang Wiegand: Vorbem. to §§ 932-936 Rn. 43. In: Axel Pfeifer, Wolfgang Wiegand, Karl-Heinz Gursky (eds.): J. von Staudinger's comment on the German Civil Code: §§ 925–984 (Property II) . De Gruyter, Berlin 2017, ISBN 978-3-8059-1215-0 .
41. ^ Hans Josef Wieling: Property Law . 2nd Edition. tape 1 : Property, possession and rights to movable property . Springer, Berlin 2006, ISBN 3-540-29869-X , p. 372 . Dieter Medicus, Jens Petersen: Civil law . 26th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5462-8 , Rn. 548f.
42. ↑ BGHZ 10, 69 .
43. ^ Fritz Baur, Jürgen Baur, Rolf Stürner: Property Law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 51 Rn. 19. Klaus Vieweg, Almuth Werner: Property Law . 8th edition. Franz Vahlen, Munich 2018, ISBN 978-3-8006-5696-7 , § 4 Rn. 5, 7, 22.
44. ↑ BGHZ 10, 81 . Jürgen Oechsler: § 932 Rn. 13. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 . Jan Wilhelm: Property law . 6th edition. De Gruyter, Berlin 2019, ISBN 978-3-11-059639-7 , Rn. 927.
45. ↑ Jürgen Oechsler: § 932 Rn. 16. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 . Peter Kindler, David Paulus: Honest Acquisition - Foundations and Basic Principles . In: Legal Training 2013, 490 (491).
46. ^ BGH, judgment of March 22, 1982 - VIII ZR 92/81 = Neue Juristische Wochenschrift 1982, pp. 2371–2372.
47. ^ Hans Josef Wieling: Property Law . 2nd Edition. tape 1 : Property, possession and rights to movable property . Springer, Berlin 2006, ISBN 3-540-29869-X , p. 384 .
48. ^ Fritz Baur, Jürgen Baur, Rolf Stürner: Property Law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 51 Rn. 3.
49. ↑ Caroline Meller-Hannich: § 932 Rn. 12. In: Alfred Keukenschrijver, Gerhard Ring, Herbert Grziwotz (eds.): Nomos Commentary BGB: Property Law . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1103-1 .
50. ↑ Ralph Weber: Property Law I: Movable things . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-0654-9 , § 9 marginal no. 12-14. Fritz Baur, Jürgen Baur, Rolf Stürner: Property law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 52 Rn. 17-19.
51. ↑ Caroline Meller-Hannich: § 931 Rn. 1. In: Alfred Keukenschrijver, Gerhard Ring, Herbert Grziwotz (eds.): Nomos Commentary BGB: Property Law . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1103-1 .
52. ↑ Sebastian Lohsse: Acquisition in good faith, indirect possession and the fathers of the BGB . In: Archiv für die civilistische Praxis 206 (2006), p. 527.
53. ↑ Sebastian Lohsse: Acquisition in good faith, indirect possession and the fathers of the BGB . In: Archives for civilist practice 206 (2006), p. 527. Johann Kindl: Gutbeliger Mobiliarerwerb und Obtaining indirect possession . In: Archiv für die civilistische Praxis 201 (2001), p. 391 (397). Lutz Michalski: Attempt to correct the incongruity of § 933 and § 934 BGB . In: Archives for civilist practice 1981, p. 384 (386). Fritz Baur, Jürgen Baur, Rolf Stürner: Property law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 52 Rn. 20th
54. ↑ BGHZ 50, 45 .
55. ^ Jan Wilhelm: Property Law . 6th edition. De Gruyter, Berlin 2019, ISBN 978-3-11-059639-7 , Rn. 995. Dieter Medicus: Thoughts on secondary ownership . In: Gottfried Baumgärtel, Ernst Klingmüller, Hans-Jürgen Becker, Andreas Wacke (eds.): Festschrift for Heinz Hübner on his 70th birthday on November 7, 1984 . De Gruyter, Berlin 1984, ISBN 978-3-11-009741-2 , p. 611 . Lutz Michalski: Attempt to correct the incongruity of § 933 and § 934 BGB . In: Archives for civilist practice 1981, p. 384 (402).
56. ↑ BGHZ 50, 45 . RGZ 135, 75 . RGZ 138, 265 .
57. ^ BGH, judgment of November 14, 1977, VIII ZR 66/76 = Neue Juristische Wochenschrift 1978, p. 696.
58. ↑ Caroline Meller-Hannich: § 934 Rn. 16. In: Alfred Keukenschrijver, Gerhard Ring, Herbert Grziwotz (eds.): Nomos Commentary BGB: Property Law . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1103-1 .
59. ↑ On the scope of this definition Jan Wilhelm: Property Law . 6th edition. De Gruyter, Berlin 2019, ISBN 978-3-11-059639-7 , Rn. 933
60. ^ Jan Wilhelm: Property Law . 6th edition. De Gruyter, Berlin 2019, ISBN 978-3-11-059639-7 , Rn. 934.
61. ^ BGH, judgment of February 9, 2005, VIII ZR 82/03 = Neue Juristische Wochenschrift 2005, p. 1365. Klaus Röhl: To differentiate between gross and simple negligence . In: Juristentung 1974, p. 521.
62. ↑ Peter Bassenge: § 932 Rn. 10. In: Otto Palandt (Hrsg.): Bürgerliches Gesetzbuch . 74th edition. CH Beck, Munich 2015, ISBN 978-3-406-67000-8 .
63. ↑ Peter Bassenge: § 932 Rn. 11. In: Otto Palandt (Ed.): Bürgerliches Gesetzbuch . 74th edition. CH Beck, Munich 2015, ISBN 978-3-406-67000-8 .
64. ^ BGH, judgment of September 13, 2006, VIII ZR 184/05 = Neue Juristische Wochenschrift 2006, p. 3488.
65. ^ BGH, judgment of February 9, 2005, VIII ZR 82/03 = Neue Juristische Wochenschrift 2005, p. 1365.
66. ^ BGH, judgment of October 5, 1981, VIII ZR 235/80 = Neue Juristische Wochenschrift 1982, 38 (39).
67. ↑ Christoph Hirsch: BGB general part . 10th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-4708-5 , Rn. 972.
68. ↑ BGHZ 10, 69 (73).
69. ↑ Ralph Weber: Property Law I: Movable things . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-0654-9 , § 9 marginal no. 50.
70. ^ Fritz Baur, Jürgen Baur, Rolf Stürner: Property Law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 52 Rn. Jan 15th Wilhelm: Property law . 6th edition. De Gruyter, Berlin 2019, ISBN 978-3-11-059639-7 , Rn. 936
71. ^ Anja Steinbeck: Commercial Law . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2936-4 , § 28 marginal no. 1. Peter Kindler, David Paulus: Honest Acquisition - Fundamentals and Principles . In: Juristische Schulung 2013, p. 490 (492).
72. ↑ Klaus Hopt: § 366 Rn. 2. In: Adolf Baumbach, Klaus Hopt, Christoph Kumpan, Hanno Merkt, Markus Roth (eds.): Commercial Code: with GmbH & Co., commercial clauses, banking and stock exchange law, transport law (without maritime law) . 37th edition. CH Beck, Munich 2015, ISBN 978-3-406-67985-8 .
73. ↑ Jürgen Oechsler: § 935 Rn. 2. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 . Harry Westermann, Karl-Heinz Gursky, Dieter Eickmann: Property law . 8th edition. CF Müller, Heidelberg 2011, ISBN 978-3-8114-7810-7 , § 45 Rn. 10.
74. ^ Hans Josef Wieling: Property Law . 2nd Edition. tape 1 : Property, possession and rights to movable property . Springer, Berlin 2006, ISBN 3-540-29869-X , p. 398 .
75. ↑ Hans Schulte-Nölke: § 935 Rn. 2. In: Reiner Schulze, Heinrich Dörner, Ina Ebert, Thomas Hoeren, Rainer Kemper, Ingo Saenger, Klaus Schreiber, Hans Schulte-Nölke, Ansgar Staudinger (eds.): Bürgerliches Gesetzbuch: Handkommentar . 8th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-1054-6 .
76. ↑ With numerous examples Fritz Baur, Jürgen Baur, Rolf Stürner: Property Law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 52 Rn. 42.
77. ↑ Hans Schulte-Nölke: § 935 Rn. 3. In: Reiner Schulze, Heinrich Dörner, Ina Ebert, Thomas Hoeren, Rainer Kemper, Ingo Saenger, Klaus Schreiber, Hans Schulte-Nölke, Ansgar Staudinger (ed.): Bürgerliches Gesetzbuch: Handkommentar . 8th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-1054-6 .
78. ↑ RGZ 71, 248 (252). OLG Munich, judgment of February 5, 1986, 15 U 3986/85 = Neue Juristische Wochenschrift 1987, p. 1830. Fritz Baur, Jürgen Baur, Rolf Stürner: Property law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 52 Rn. 39. Different view: Jörg Neuner: The honesty protection for lost things . In: Juristische Schulung 2007, p. 401 (405). Detlev Joost: § 855 Rn. 23. In: Dieter Schwab (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 9. Sections 1589-1921 . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 .
79. ↑ Felipe Temming: The exclusion of good faith purchase in the case of lost items . In: Legal Training 2018, p. 108 (110).
80. ↑ Caroline Meller-Hannich: § 937 Rn. 1. In: Alfred Keukenschrijver, Gerhard Ring, Herbert Grziwotz (eds.): Nomos Commentary BGB: Property Law . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1103-1 .
81. ^ Christian Baldus: § 937 Rn. 5-10. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 .
82. ↑ Jürgen Oechsler: § 935 Rn. 14. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 . Jörg Neuner: The honesty protection for lost items . In: Juristische Schulung 2007, p. 401 (402).
83. ↑ Jürgen Oechsler: § 935 Rn. 18. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 . Jörg Neuner: The honesty protection for lost items . In. Legal training 2007, p. 401 (402).
84. ^ Hans Josef Wieling: Property Law . 2nd Edition. tape 1 : Property, possession and rights to movable property . Springer, Berlin 2006, ISBN 3-540-29869-X , p. 406 .
85. ↑ Jürgen Oechsler: § 936 Rn. 1. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 . Fritz Baur, Jürgen Baur, Rolf Stürner: Property law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 52 Rn. 51. Hans Josef Wieling: Property law . 2nd Edition. tape 1 : Property, possession and rights to movable property . Springer, Berlin 2006, ISBN 3-540-29869-X , p. 413 .
86. ↑ Jochen Werner: The purchase of movable things in good faith unencumbered . In: Juristische Arbeitsblätter 2009, p. 411 (412).
87. ↑ BGHZ 57, 166 . Ralph Weber: Property law I: movable property . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-0654-9 , § 9 marginal no. 69.
88. ↑ Jürgen Oechsler: § 936 Rn. 2. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 .
89. ↑ Caroline Meller-Hannich: § 936 Rn. 15. In: Alfred Keukenschrijver, Gerhard Ring, Herbert Grziwotz (eds.): Nomos Commentary BGB: Property Law . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1103-1 .
90. ^ Marina Wellenhofer: Property law . 34th edition. CH Beck, Munich 2019, ISBN 978-3-406-75197-4 , § 8 Rn. 38th Jan Wilhelm: Property law . 6th edition. De Gruyter, Berlin 2019, ISBN 978-3-11-059639-7 , Rn. 1013.
91. ^ Marina Wellenhofer: Property law . 34th edition. CH Beck, Munich 2019, ISBN 978-3-406-75197-4 , § 8 Rn. 37. Hans Joachim Musielak: The repurchase of property by the unauthorized seller . In: Legal Training 2010 p. 377.
92. ^ Fritz Baur, Jürgen Baur, Rolf Stürner: Property Law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 52 Rn. 34. Hans Josef Wieling: Property law . 5th edition. Springer, Berlin 2007, ISBN 978-3-540-37403-9 , pp. 132 .
93. ^ Jan Wilhelm: Property Law . 6th edition. De Gruyter, Berlin 2019, ISBN 978-3-11-059639-7 , Rn. 1019.
94. ↑ BGH, judgment of October 21, 2002, II ZR 118/02 = Neue Juristische Wochenschrift Jurisdiction-Overview 2003, p. 170 (171). Ralph Weber: Property law I: movable property . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-0654-9 , § 9 marginal no. 67. Peter Bassenge: § 932 Rn. 17. In: Otto Palandt (Hrsg.): Bürgerliches Gesetzbuch . 74th edition. CH Beck, Munich 2015, ISBN 978-3-406-67000-8 . Wolfgang Wiegand: The repurchase of the unauthorized . In: Juristische Schulung 1971, P. 62. Hans Joachim Musielak: The repurchase of property by the unauthorized seller . In: Juristische Schulung 2010 p. 377 (380 f.).
95. ↑ Jürgen Kohler : § 892 Rn. 11. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 . Ulrich Krause: § 892 Rn. 27. In: Alfred Keukenschrijver, Gerhard Ring, Herbert Grziwotz (eds.): Nomos Commentary BGB: Property Law . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1103-1 .
96. ↑ Jürgen Kohler: § 893 Rn. 9. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 .
97. ↑ Ralph Weber: Property Law 2. Real Estate Law . 4th edition. Nomos, Baden-Baden 2015, ISBN 978-3-8487-0655-6 , § 8 Rn. 19. Marina Wellenhofer: Property law . 34th edition. CH Beck, Munich 2019, ISBN 978-3-406-75197-4 , § 19 Rn. 1.
98. ↑ Jan Lieder: The legal succession . Mohr Siebeck, Tübingen 2015, ISBN 978-3-16-152911-5 , pp. 466 .
99. ↑ Alexander Weiss: § 899 a BGB - Acquisition in good faith without protection of conditions? In: Juristische Schulung 2016, p. 494. Marina Wellenhofer: Real estate transactions with the BGB-Gesellschaft . In. Legal training 2010, p. 1048.
100. ^ Dieter Medicus, Jens Petersen: Civil law . 26th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5462-8 , Rn. 550. Fritz Baur, Jürgen Baur, Rolf Stürner: Property law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 18 Rn. 23.
101. ↑ Jürgen Kohler: § 899 Rn. 1, 20. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 .
102. ↑ Basics: RGZ 129, 124 ff .; in turn, today's h. M .: cf. representative Harry Westermann : Property Law , 5th edition 1966 with addendum 1973, as study edition 1974, § 85 II 5 b; with further reasons Dieter Medicus, Jens Petersen: Bürgerliches Recht . 26th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5462-8 , § 22 Rn. 551.
103. ↑ OLG Rostock, judgment of April 15, 2014, 3 W 76/11 = Neue Juristische Wochenschrift Jurisdiction Report 2015, p. 77.
104. ↑ Klaus Schreiber, Rainer Burbulla: The purchase of immovable property in good faith . In: Jura 1999, p. 491 (493). Dieter Medicus: possession, land register and certificate of inheritance as legal certificates . In: Jura 2001, p. 494 (497). Paul Schrader: Knowledge in Law: Definition of the subject of knowledge and determination of the level of knowledge as legally relevant knowledge . Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-154641-9 , pp. 229 .
105. ↑ Jürgen Kohler: § 892 Rn. 53. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 . Ansgar Staudinger: § 892 Rn. 21. In: Reiner Schulze, Heinrich Dörner, Ina Ebert, Thomas Hoeren, Rainer Kemper, Ingo Saenger, Klaus Schreiber, Hans Schulte-Nölke, Ansgar Staudinger (ed.): Bürgerliches Gesetzbuch: Handkommentar . 8th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-1054-6 .
106. ↑ Hans Schulte-Nölke: § 1207 Rn. 2. In: Reiner Schulze, Heinrich Dörner, Ina Ebert, Thomas Hoeren, Rainer Kemper, Ingo Saenger, Klaus Schreiber, Hans Schulte-Nölke, Ansgar Staudinger (eds.): Bürgerliches Gesetzbuch: Handkommentar . 8th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-1054-6 .
107. ↑ BGHZ 119, 75 . BGHZ 34, 122 . BGHZ 34, 153 .
108. ↑ Karsten Schmidt: News about legal liens on property of third parties . In: Neue Juristische Wochenschrift 2014, p. 1. Jürgen Damrau: § 1257 Rn. 3. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 . Jan Wilhelm: Property law . 6th edition. De Gruyter, Berlin 2019, ISBN 978-3-11-059639-7 , Rn. 1866.
109. ^ Dieter Medicus, Jens Petersen: Civil law . 26th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5462-8 , Rn. 568.
110. ^ Dieter Medicus, Jens Petersen: Civil law . 26th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5462-8 , Rn. 569-571.
111. ^ Dieter Medicus, Jens Petersen: Civil law . 26th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5462-8 , Rn. 568. Matthias Schmoeckel: Inheritance law . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2878-7 , § 9 marginal no. 11-15.
112. ^ Jan Lieder: Acquisition in good faith in inheritance and company law . In: Jura 2010, p. 801 (804). Steffen Schlinker, Peter Zickgraf: Acquisition in good faith in inheritance law . In: Juristische Schulung 2013, S. 876. Dieter Medicus, Jens Petersen: Bürgerliches Recht . 26th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5462-8 , § 22 Rn. 568.
113. ↑ BGHZ 33, 314 . Dirk Olzen, Dirk Looschelders: Inheritance law . 5th edition. De Gruyter, Berlin 2017, ISBN 978-3-11-048665-0 , Rn. 968.
114. ↑ BGBl. 2008 I p. 2026 . Here is an overview of Torsten Körber, René Kliebisch: The new GmbH law . In: Juristische Schulung 2008, p. 1041.
115. ^ Tim Drygala, Marco Staake, Stephan Szalai: Corporation law . Springer, Berlin 2012, ISBN 978-3-642-17174-1 , § 12 Rn. 31.
116. ↑ To this in detail Johannes Wagner: The bona fide acquisition of business shares in the law of the GmbH: a partially unconstitutional legal institution? Peter Lang, Frankfurt 2010, ISBN 978-3-653-00389-5 , pp. 50-53 .
117. ↑ Torsten Körber, René Kliebisch: The new GmbH right . In: Juristische Schulung 2008, p. 1041 (1047).
118. ↑ Uwe Hüffer, Jens Koch: Corporate Law . 8th edition. CH Beck, Munich 2011, ISBN 978-3-406-62687-6 , § 35 Rn. 17. Tim Drygala, Marco Staake, Stephan Szalai: Corporation law . Springer, Berlin 2012, ISBN 978-3-642-17174-1 , § 12 Rn. 38.
119. ↑ Christian Katzenmeier: § 823 Rn. 34. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
120. ↑ Volker Emmerich: § 285 Rn. 22. In: Wolfgang Krüger (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 2: §§ 241-432 . CH Beck, Munich 2016, ISBN 978-3-406-66540-0 .
121. ↑ Martin Schwab: § 687 Rn. 32. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
122. ↑ BGHZ 29, 157 . BGH, judgment of September 24, 1996, XI ZR 227/95 = Neue Juristische Wochenschrift 1997, p. 190.
123. ↑ Martin Schwab: § 816 Rn. 61. In: Mathias Habersack, Hans-Jürgen Paper , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Peter Ulmer, Gerhard Wagner (eds.): Munich Commentary on the Civil Code . 6th edition. tape 5 : Sections 705–853, Partnership Law, Product Liability Law . CH Beck, Munich 2013, ISBN 978-3-406-61460-6 .
124. ^ Dieter Medicus : Civil law . 19th edition Carl Heymanns Verlag, Cologne 2002, ISBN 3-452-24982-4 , § 16 II.
125. ↑ RGZ (GS) 163, 348 ff.
126. ↑ BGHZ 37, 363 (368). BGHZ 47, 393 (395-396).

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