Legal second

from Wikipedia, the free encyclopedia

The legal second or logical second is an explanatory figure from Roman law in jurisprudence . It describes a fictitious period of time which is inserted between two legal effects of the same physical event, which are presented as successive. This logical second makes it possible to explain that an event has legally intended and desirable consequences, which, according to other legal principles, would be excluded by this event. Thus, the logical second in Roman law illustrated the possibility of releasing a slave by testamentary disposition and giving him a legacy . Another area of ​​application is when a change in the law can be traced back to a chain of legal transactions that build on each other and all of which become effective through the same event.

General

Günther Winkler defined the term as

“A specifically legal way of thinking for the time , through which the temporal beginning, the temporal change, and the temporal end of the attribution of permanent rights and obligations and legal relationships to different legal subjects through the fiction of a merely imagined period of time reduced to a minimal point in time differentiated. "

It solves the "thought difficulty" associated with changing rights and duties. This arises on the one hand from the assumption that a cause must precede an effect, and on the other hand from a confusion between ideal time and empirical time .

In 1962, Franz Wieacker suggested the designation “legal second” for the “logical second”. Both terms are used in jurisprudence.

The legal second is a legal figure for a short, imaginary moment in the sense of a fictitious, infinitesimal point in time and not a second in the sense of a unit of time . The temporal extension of a legal second is therefore exactly zero. The “logical second” was primarily concerned with the Roman legal scholar Gnaeus Arulenus Caelius Sabinus (around 69 AD), who also used the logical second thought in special cases of donations between spouses. In a judgment of April 4, 1933, the Reichsgericht also spoke of the logical second when acquiring an expectant right .

Examples

Passage acquisition

One area of ​​application of the legal second is the theory of the so-called property law transitory acquisition . Here it is used for the graphic explanation of legal processes, whereby the transfer process of a right plays a role in loan collateral . According to this theory, there is a transitory acquisition if, in a chain of two or more successive transfers, the first transfer is conditional, for example through retention of title . The last purchaser (if he or his previous purchaser has not previously acquired property in good faith) can only acquire the property if the condition for the first purchaser occurs, for example if he pays the purchase price in full. The first and each additional intermediate purchaser then acquires the property for at least one legal second, which can result in the item being encumbered with a statutory lien or lien (e.g. landlord's lien according to § 562 BGB or lien according to § 804 ZPO ) or falls under the liability association of a mortgage as an accessory according to § 1120 BGB .

In its decision of April 4, 1933, the Reichsgericht had advocated this view that the purchaser of an expectant right was an indirect purchaser after the acquisition of property had occurred a “logical second” to the seller of the expectant right. The BGH changed this case law in February 1956 and assumed that a contingent sale would transfer an expectant right that was transferable like property and that, if the condition were met, would become property directly, without the previous and intermediate buyers being involved in this process would be. Liens on expectant rights were converted into liens on property. There was then no longer any need for a legal second.

What is disputed, however, is the legal question of whether the advance assignment of a future claim arises directly in the person of the assignee (direct acquisition) or belongs to the assignor's assets for a legal second (transitory acquisition) before it is transferred to the assignee. As a processor, the conditional buyer becomes the owner for a legal second as part of the pass-through acquisition, but according to case law, the conditional supplier acquires property directly through the processing.

A transit acquisition under civil law (in the form of a logical second) does not necessarily result in a transit acquisition under tax law in the sense of having beneficial ownership in the person of the transit acquirer under civil law; rather, the tax allocation is to be assessed in accordance with Section 39 (2) No. 1 AO.

Other areas of law

The legal second was also used by the BGH to illustrate the assessment of the controversial legal question, on the basis of which value a person entitled to a compulsory portion can request a supplement under Section 2325 (1) BGB if the testator provides the death benefit of a life insurance taken out by him for his own life by means of a has given the revocable subscription right provision to a third party as a gift. The Supreme Court speaks as part of the compulsory portion right from a "last legal second" of the deceased in his life in which he had the opportunity, the rights from his life insurance policy to implement for his fortune. In the last legal second before death occurred, the testator's own rights were lost, which must be distinguished from the claim to payment of the sum insured, while the beneficiary originally acquired his own claim to the sum insured against the insurer when death occurred one legal second later .

consequences

Without a legal second as an imaginary intermediate step, legal or factual circumstances, the transfer of a right to a third party, could be logically difficult or impossible to understand. In the last example, on the other hand, it serves to clarify the difference between claims during life and after death. The meaning of this figure of thought therefore lies in the illustration of the legal processes. It explains the emergence of rights, but does not create rights itself.

literature

  • Günther Winkler : Time and Law. Critical remarks on the time-boundness of law and legal thought , Springer, 1995, ISBN 3-211827-63-3 (Research from State and Law, Volume 100), page 318 ff.
  • Rudolf Kuhnel: The legal second. Importance of a construction. Diss., Münster 1992.

Individual evidence

  1. ↑ a b G. Winkler: Time and Law , p. 319
  2. ↑ Franz Wieacker, The legal second: To the legitimation of the construction law , in: Existence and Order, FS Erik Wolf, 1962, pp. 421–453.
  3. ↑ Max Kaser, Roman sources of law and applied juristic method , 1986, p. 292 .
  4. ↑ a b pass-through acquisition; RGZ 140, 223; Wolfgang Fikentscher / Andreas Heinemann, Law of Obligations , 2006, § 75 IV, Rn. 963 .
  5. ↑ BGHZ 20, 88 ( lorenz.userweb.mwn.de ).
  6. ^ Peter Bülow, Law of Credit Securities , 2003, p. 457.
  7. ↑ BFH VIII R 33/94, judgment of May 16, 1995, NJW 1996, 1079, jurion.de .
  8. ↑ BGHZ 20, 159
  9. ↑ BFH IX R 7/09, judgment of January 26, 2011, openjur.de .
  10. ^ BGH, judgment of April 28, 2010, Az. IV ZR 73/08 .