Main thing (property law)
The main thing in property law is the designation for things to which other things are subordinate.
General
Property law does not attach the same importance to all things, but gives some things ( main things ) priority over other things ( secondary matters ). Minor matters are always assigned to a certain main thing and “intended to serve” this. It can hierarchically happen that a minor matter itself also functions as the main matter, whereby its minor matters also become minor matters of the entire main matter. As a result, the legal fate of the minor matters largely depends on their main issue. One thing may be only main thing when used for their intended purpose functional is.
history
The General Prussian Land Law (APL) of June 1794 already assumed that “the secondary matter, without which the main thing cannot be used for its purpose, ... is viewed as an accessory” (I 2, § 46 APL). The Austrian ABGB of June 1811 also speaks of “minor matters, without which the main thing cannot be used” (§ 294 ABGB). The BGB, which came into force in January 1900, only retained the legal term main thing.
Legal issues
The main items can be movable property or land / land rights . According to the prevailing view of the general public, one can only speak of a main thing in accordance with Section 947, Paragraph 2 of the German Civil Code if the remaining components could be missing without affecting the nature of the thing. The main thing appears in connection with the accessories in Section 97 (1) BGB. According to this, accessories are “movable objects which, without being part of the main item, are intended to serve the economic purpose of the main item and are in a spatial relationship to it that corresponds to this provision.” The APL word “secondary matter” was replaced by “to serve determined ”replaced. The accessories are thus in close functional and spatial relationship with their main item. Section 98 of the German Civil Code (BGB) lists examples of what is considered to be “intended to serve” for one main thing , namely machines for commercial properties or livestock or agricultural products for farms .
This regulation aims to maintain the economic connection between accessories and the main thing and aims to achieve the same legal fate for both. For example, in the case of the purchase of real estate in accordance with § § 926 Paragraph 1 BGB, § 946 Paragraph 1 BGB, in case of doubt it can be assumed that the sale of the property also extends to its accessories. Liens ( mortgage , land charge and mortgage ) extend according to § 1120 of the Civil Code on the basic accessories. Therefore, the foreclosure on a property ( Section 865 (1) ZPO ) also includes the property accessories, which according to Section 865 (2) sentence 1 ZPO cannot be seized separately (non- attachability in the context of the foreclosure of the property ). The connection of several movable objects with one another to form essential components of a main object makes the owner of the main object the sole owner ( Section 947 (2) BGB). This also applies to the mixing or processing of previously independent items into a single main item.
The designation of the main item as an accessory is made by the will of the user of the main item; the dedication must be for an indefinite period. One thing may be only main thing when used for its intended purpose functional is, only it can also have accessories. The main thing can also be part of a thing, for example the building as an integral part of a property. The accessories of the building are then also accessories of the whole thing.
Individual evidence
- ↑ Ignaz von Wildner-Maithstein, The Jurist. New journal excellent for the practice of all Austrian law , volume 4 / issue 1, 1840, p. 211
- ↑ Otto Palandt / Jürgen Ellenberger , BGB Commentary , 73rd edition, 2014, § 97 Rn. 3
- ↑ BGHZ 20, 159 , 163
- ↑ Denis Schlimpert, Integral and functional connections from matters in French and German law , 2015, p. 149
- ↑ BGH NJW 1969, 2135, 2136
- ^ Paul Oertmann , Comment BGB , 1928, § 97 N 2 c
- ↑ BGHZ 62, 49 , 51
- ↑ RGZ 89, 63
