Imponderables (law)
In jurisprudence , imponderables are considered imponderables, i.e. H. denotes uncontrollable substances and other natural phenomena. The opposite term is the ponderabilia, weighable substances.
In principle, uncontrollable substances cannot be the subject of a law, since legal power requires actual controllability. Traditionally, imponderable substances are legally defined as those substances which, once applied, do not immediately fall to the ground again by themselves; They cannot be held and weighed in their natural state, so they cannot be weighed.
Examples of legal imponderables
Radiations like light, noises, vibrations and warmth are imponderable by their nature. Since they have no material substrate, they can never be weighed.
Their physical state by imponderable are vapors, soot, smoke, dust and the like, as long as they have not been set, that still exist as a cloud. The same applies to substances that normally occur in solid or liquid form, provided they are in a gaseous state, such as water vapor. If unpredictable substances have precipitated or their aggregate state has changed in such a way that they can be grasped and thus weighed, they are no longer imponderables: condensate of water vapor, the soot or dust that has been deposited (and turned into a heap) can be weighed. Substances whose condition cannot be assessed are not imponderable if they are contained in a container: The gas in a gas cylinder is not imponderable; it can be weighed and controlled, and even transported. If you turn on the gas tap and let it escape into the open air, it becomes imponderable.
Bees and other insects, as well as birds, can be weighed, although normally they do not sink immediately to the ground when they are released into the air, but fly away and are thus actually inconceivable. They fall to the ground, for example when they are stunned, just like a stone (the classic ponderabile) and are therefore actually not imponderables, but are often treated as such by case law.
civil right
Legal object ability of imponderables
Since imponderables cannot be controlled, even if they are physical objects, no property can exist in them as long as they are still uncontrollable. Ownership of a soot cloud or freely flowing gas is therefore not possible, but ownership is possible on the deposited (and swept up) soot or the captured gas.
Imponderables as property effects
According to German civil law , the effects of imponderables that affect a property and the owners (not the owners) can only be averted to a limited extent according to § 906 BGB . The general right of the owner to prohibit any influence on his property is thus restricted for effects that fall within the scope of § 906 BGB. These effects include gases, vapors, odors, smoke, soot, heat, noise and vibrations, as well as similar, uncontrollable effects emanating from another property.
In any case, “similar effects” in this sense are effects caused by imponderables, because these are always uncontrollable. But also the action of ponderable substances can be a “similar action” if it is just as uncontrollable as the action of unpredictable substances (this is the case with the action of - ponderable - swarms of bees). Such uncontrollable influences cannot be prohibited by the owner if they do not or only insignificantly impair the use of the property.
A non-preventable, insignificant impairment exists, in particular, if any immission regulations for a system located on the immitting property are complied with or the effect is customary in the location and cannot be prevented by economically reasonable protective devices. This (restricted) immissions protection under private law can now only collide with the immissions protection under public law in exceptional cases because compliance with the public law obligations almost without exception means that private individuals are not entitled to a right of defense. The immission protection under public law (through the BImSchG , TA Lärm , TA Luft, among others) specifies the concept of the materiality of the impact through the specified limit values.
If the defense against the effects is excluded because defense is impossible, for example, there is a compensation claim on the basis of an expropriation or an encroachment equivalent to an expropriation.
Public law
According to the prevailing opinion in literature and jurisprudence, the significant environmental impacts under the Federal Immission Control Act are only impacts of imponderable substances.
