Claim to surrender

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In German property law, the claim to surrender is the real claim of the owner of a thing against the illegitimate owner to surrender; Numerous other regulations also grant claims for return under the law of obligations. In family law , the surrender of a child in the context of personal care can be required by anyone who unlawfully withholds it from the parents or one of the parents .


All regulations have in common that an unauthorized owner is obliged to give something to the authorized norm addressee . In property law, surrender is the transfer of direct possession at the place where the thing is intended to be located. In family law, the surrender of the child is the right of one parent against a spouse or the parents against third parties who unlawfully withhold the child from the parents. The claim for protection in property law the property , in family law, the rights of parents to their children.

Property law

A vindication situation is a prerequisite for a claim to surrender . Property and possession must have fallen apart and the owner must have no right of possession over the owner.


According to § 903 BGB the owner can exclude other legal subjects from any influence on the thing belonging to him. If possession is withdrawn or withheld from him (e.g. through prohibited personal power ) or if it is lost (e.g. through loss ), it follows from § 903 BGB that he can demand the surrender of the illegitimate owner. This right to surrender is granted to him by Section 985 of the German Civil Code ( BGB) for movable and immovable property ( land and rights equivalent to land ) in order to remedy the damage to property caused by unauthorized third-party ownership. The right to surrender is one of the criteria that protect property as the absolute right in rem and give the owner unrestricted control over the thing.

Owner-owner relationship

From the owner-owner relationship it follows that the owner of a thing according to § 985 BGB regularly has a claim against the unauthorized owner of a thing, which is directed to surrender to the owner. However, the owner has to own something without rights. So the thief is exposed to the surrender claim, not because he stole, but because he owns the stolen item . The surrender claim plays a special role in the reversal of failed contracts , in the case of sales only if the agreement in rem is null and void . However, if the owner has a right to this property (for example through rent , loan , lease , usufruct , lien ), the claim to surrender is excluded. The owner can refuse to surrender the item if he is entitled to possess it in relation to the owner. The owner can then refer to his loan or rental agreement or similar long-term obligations according to § 986 BGB. The right to possession is not only a right of the owner to refuse performance, but also means that there is no right to surrender.

In § 1007 para. 1 BGB regulates what happens if the owner gets a surrender claim against other owners of the same thing given. Anyone who owned a movable item can demand that the owner surrender the item if the owner was not in good faith when acquiring the property (Section 1007 (1) BGB). If the thing has been stolen, lost or otherwise lost from the previous owner, he can also demand the surrender from a bona fide owner, unless this is the owner of the thing or the thing was lost to him before the time of possession of the previous owner; however, this does not apply to money and bearer securities (Section 1007 (2) BGB).


The creditor of the claim for surrender is the owner, the debtor the direct or indirect owner or third party owner . The surrender claim applies not only to the immediate owner, but also to the indirect owner. Surrender is the provision of immediate possession in the state in which the thing is. If the owner is only a co-owner and the owner is also co-owner of the thing, he can only granting the co-ownership demand ( § 866 BGB); if the owner is not a co-owner, he must surrender the item to all co-owners. If the owner is an indirect owner, he can only demand surrender to the immediate owner, unless the latter does not want to take over the direct possession (Section 986 (1) sentence 2 BGB). According to the prevailing opinion , the owner can demand not only the transfer of indirect ownership from the indirect owner, but also the surrender of the thing.

Transfer surrogate

In § 931 BGB it is provided that the surrender claim can represent a surrender surrogate . If, accordingly, a third party is to remain the immediate owner and the purchaser is to become an indirect owner and owner, the assignment of the surrender claim replaces the handover of the thing to be undertaken . The right to surrender is therefore an independently assignable, pledgeable and attachable right.

Law of obligations

Claims for surrender are aimed at obtaining immediate possession. They can be classified as real (e.g. from §§ 985, 1007 BGB), but also of a contractual nature.

Further surrender claims are the contractual obligations from the loan relationship , from the custody ( § 695 ), the order ( § 667 BGB) and (quasi-contractual) from the management without an order . The relationship between the claims to return under the law of obligations and those from Section 985 BGB is controversial. As a result, the debtor will be able to stick to his contractual partner and will not have to check the ownership of third parties. Claims under the law of obligations take precedence over those from § 985 BGB.

Since the claim to surrender can be based on breaches of duty , surrender is possible within the framework of restitution in kind according to § 249 BGB in connection with § 280 BGB or § 823 BGB. Ultimately, a claim for surrender can also be based on Section 812 of the German Civil Code (BGB) in the context of unjust enrichment. A special form of the surrender claim in real estate law is the right to correct the land register from § 894 BGB. Because of this claim has to the former, the Land Registry registered its book holdings of the true owner issue .

Further claims under the law of obligations can be found in Section 285 (1) BGB, Section 346 (1) BGB, Section 346 (3) sentence 2 BGB, Section 457 (1) BGB, Section 496 (3) sentence 3 BGB, Section 562b ( 2) BGB 2 sentence 1 BGB, § 563b Abs. 2 BGB, § 667 BGB, § 675r Abs. 3 BGB, § 816 Abs. 1 S. 1 BGB, § 816 Abs. 1 S. 2 BGB, § 816 Abs. 2 BGB, § 817 S. 1 BGB, § 822 BGB, § 861 Abs. 1 BGB, § 987 Abs. 1 BGB, § 1007 Abs. 1 BGB, § 1007 Abs. 2 S. 1 BGB, § 1231 Abs. 1 BGB , § 1251 Abs. 1 BGB, § 1296 S. 2 BGB, § 1361a Abs. 1 S. 1 BGB, § 1632 Abs. 1 BGB, § 1684 Abs. 3 S. 3 BGB, § 1698 Abs. 1 BGB, § 1890 para. 1 BGB, § 1973 para. 2 sentence 1 BGB, § 1990 para. 1 sentence 2 BGB, § 2018 BGB, § 2020 BGB, § 2031 para. 1 sentence 1 BGB, § 2130 para. 1 BGB , § 2184 S. 1 BGB, § 2362 Abs. 1 BGB, § 2374 BGB.

References to legal consequences , according to which surrender can be requested in accordance with the provisions of the enrichment law, can be found in Section 516 (2) sentence 2 BGB, Section 527 (1) BGB, Section 528 (1) sentence 1 BGB, Section 531 (2) BGB , Section 547 (1) sentence 2 BGB, Section 628 (1) sentence 3 BGB, Section 684 sentence 1 BGB, Section 852 sentence 1 BGB, Section 951 (1) sentence 1 BGB, Section 977 sentence 1 BGB, § 988 BGB, § 993 Abs. 1 Hs. 1 BGB, § 1301 BGB, § 1434 BGB, § 1457 BGB, § 2021 BGB, § 2196 Abs. 1 BGB, § 2287 Abs. 1 BGB, § 2329 Abs. 1 BGB. A reference, according to which the publication is to take place according to the regulation of § 346 BGB, can be found in § 628 para. 1 sentence 3 BGB.

Family law

The surrender of the child in the event of illegal child abduction is regulated in Section 1632 (1) BGB. Unlawfully withholding means on the one hand any refusal to surrender the child to the legal guardian and on the other hand, the withholding of the child. Whether the surrender is in the best interests of the child does not matter in this context. However, if the youth welfare office takes the child into its care by virtue of public law ( § 42 SGB ​​VIII) , there is no right to surrender the child.


In Austria according to § 366 ABGB one's property suit for restitution required in the Switzerland a publication action under Art. 641 para. 2 of the Civil Code required. In France, the right to return is called French revendication and relates to “goods” ( French biens , which can mean “things”). It is disputed whether the claim to surrender is limited to physical goods ( French: biens corporels ). In the case of real estate, it also extends to their accessories . In contrast to German law, the owner must sue the unauthorized owner for surrender. Also in Anglo-Saxon common law , the owner has a right to surrender against the illegitimate owner of the transfer of property, whose various terms denote different surrender issues ( English restitution , conversion , replevin ). These are tort claims of the owner. International claims to surrender play a role in particular in the case of art theft and looted art . Here it is of crucial importance when, by whom and under what circumstances a cultural asset was acquired.

Individual evidence

  1. Carl Creifelds , Creifelds Legal Dictionary , 2000, p. 652
  2. Mathias Habersack, Examens-Repetitorium Dingerecht , 2012, p. 32
  3. Wolfgang Brehm / Christian Berger, Property Law , 2006, p. 117
  4. BGH NJW 1999, 3716
  5. BGHZ 82, 13, 18
  6. Otto Palandt / Peter Bassenge , BGB Commentary , 73rd edition, 2014, § 985 Rn. 2 and 5
  7. BGHZ 53, 31
  8. BGH NJW 2001, 2966
  9. Christoph Karl Sliwka, claims to surrender as part of civil property rights? , 2012, p. 409
  10. Martin Häublein, Munich Commentary on the BGB , 5th edition, 2008, § 604 Rn. 8th
  11. Whether these are actually legal consequences or legal fundamental references is partly controversial
  12. Kurt Schellhammer, Family Law according to Claim Basis , 2006, p. 442
  13. Kurt Schellhammer, Family Law according to Claim Basis , 2006, p. 442
  14. Christoph Karl Sliwka, claims to surrender as part of civil property rights? , 2012, p. 129
  15. Hannes Hartung, Art theft in War and Persecution , 2005, p. 275