Reversion

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Reversal refers to the transfer of a right to the original holder of the right, whether legally or by virtue of the law . In current German law, there are statutory provisions on reversion in the area of heritable building rights and foundation law . Under the designation of rights relapse , reversal is also significant in the area of copyright law .

history

In legal history, reversal ( mhd.  Anval, totval ; Latin apertura or ius aperturae ; in some cases also kadukrecht, caduition law, caducity law) occurs in different contexts. The best-known variant is likely to be found in medieval feudal law . The fiefdom reverts to the feudal lord if the feudal man dies in a personal fiefdom or if the feudal man dies without an heir in a hereditary fiefdom. Reversal rights could also be granted to village or market cooperatives if the owner of a property belonging to the trademark association died and there was no close blood relative. Finally, the king or the treasury could also have a right of revocation if no heir could be found in relation to an estate within a certain period (often 30 days).

Reversal in civil law

Germany

Reversal is expressly regulated in the Law on Heritable Building Rights (ErbbauRG), essentially in Sections 2–4, 32–33 ErbbauRG. Reversal means the transfer of a heritable building right back to the property owner before the agreed term of the heritable building contract expires . Reasons for the reversion can e.g. B. Insolvency of the leaseholder and consequent inability to pay the leasehold rent or breach of his obligations under the leasehold contract.

The orderly termination of the heritable building right at the end of the term of the heritable building contract is, in contrast to reversal, with the passage of time . When the time expires, the leasehold land register is officially closed without the need for a separate application. The legal separation of land and building brought about by the heritable building right is thereby repealed, the building becomes an essential part of the property again.

The state's right to inheritance in accordance with Section 1936 of the German Civil Code (BGB) is not based on the reversion law of German medieval law, rather it has its roots in common law . In the area of foundation law, foundation laws of public foundations contain provisions on the reversal of foundation assets to the state in the event of the foundation being dissolved. For foundations under private law, § 88 BGB regulates the accumulation of assets and - comparable to § 1936 BGB - regulates the tax authorities' entitlement to accruals, unless a person entitled to accruals is named.

Switzerland

The Swiss Civil Code , for example, recognizes the reversal of building law in accordance with Art. 779 ff . The owner of a property can grant a third party the right to “ erect or maintain a structure on or under the ground ”. Reversion to the property owner can occur in several cases: With the expiry of the building permit (Art. 779c ZGB) or through early recovery in the event of a gross breach of duty or contract by the owner of the easement (Art. 779f ZGB).

The collapse of hydropower plants is also particularly well known in Switzerland . Before a hydropower plant is built, a concession has to be negotiated with the corresponding canton , which allows the power plant operator to obtain water. After the license expires, the systems are returned to the canton free of charge, whereupon the canton can re-tender the license. The concessions usually have a duration of 40 to 80 years.

Reversal in copyright law

In German copyright law , it is assumed by the prevailing opinion that granted rights of use automatically revert to the author in the event of ineffectiveness or termination of the contractual transaction (rights relapse ). In this respect, the otherwise applicable abstraction principle , according to which the fate of the disposition transaction is independent of that of the obligation transaction, should not apply. In 2009, however, the BGH decided that a so-called “grandchildren right”, ie a derived, simple right of use, can continue to exist even after the author has recalled the original right (BGHZ 180, 344 - “Reifen Progressive”).

The US copyright law provides for the Copyright Act of 1976 a right of termination ( termination ) of the author or his heirs before; exercising the right of termination leads to the reversion of the rights transferred.

Reversal in public law

In feudalism, the feudal relationship could be extinguished by reverting to the feudal lord.

In the 19th century, the right of the state administration or another public corporation to take ownership of private railways at the end of the concession period without payment or for a fee only covering individual parts of the railway was known as reversion .

The Swiss Water Rights Act regulates the revocation of systems or parts of systems that a licensee of rights of use has set up for the respective canton or municipality. With regard to certain system parts (" wet - hydraulic - part ") the reversal is free of charge; Systems that can be assigned to the " dry - electromechanical - part " can be taken over against compensation. Basically, at the end of the concession there is the possibility of self-use, external operation and participation, whereby the last two models are usually used in a mixed form and require a proper or early new concession.

Individual evidence

  1. ↑ See article “Heimfallsrecht” in HRG, Vol. 2, Col. 51 ff .; see. also article Heimfall ( Memento from September 12, 2014 in the Internet Archive ) in the Medieval Lexicon .
  2. ↑ Cf. the respective lemmas in the German legal dictionary .
  3. ↑ See also the Droit d'aubaine of the French king.
  4. ↑ cf. Fromm / Nordemann, § 31 UrhG margin no. 30 ff .; Wandtke / Bullinger, before §§ 31 ff UrhG, margin no. 49 f.
  5. ^ BGH, judgment of the 1st civil senate of March 26, 2009, I ZR 153/06, BGHZ 180, 344 ff.
  6. ↑ 17 USC § 203 (a) .
  7. ↑ 17 USC § 203 (b) .
  8. ↑ More details from Hartmut Spindler: “ The new American copyright law ”, in: GRUR int., Issue 12, 1977, pp. 421–433; on the relapse of rights in the event of termination, in particular p. 430 f.
  9. ↑ Victor von Röll : Heimfall Enzyklopädie des Eisenbahnwesens, Volume 6. Berlin, Vienna 1914, pp. 131–135. Zeno.org, accessed August 10, 2019
  10. ↑ Federal Act on the Utilization of Water Power (Water Rights Act, WRG) of December 22, 1916, AS 33 189
  11. ↑ See Art. 67 , 68 WRG .
  12. ↑ More details with clear illustration z. E.g. on the websites of the Valais hydropower use ( memento of the original from March 14, 2018 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. . @1@ 2Template: Webachiv / IABot / www.wasserkraftwallis.ch
  13. ↑ Reversal and new concession of hydropower plants Swiss Water Management Association, fact sheet 2012 / rev. 2016
  14. ^ Hans Wyer : The use of hydropower in the Valais. History - Law - Heimfall Rotten Verlag, 2008. ISBN 978-3-905756-40-1

literature

  • Walter Ogris: Article Heimfallsrecht , in: Adalbert Erler, Wolfgang Stammler, Albrecht Cordes: Concise Dictionary of German Legal History (HRG) , Volume 2, Columns 51-55.
  • Jan Nordemann: Commentary on § 31 UrhG, margin no. 30 ff., In: Fromm / Nordemann, Copyright , 10th edition 2008.

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