Minus (right)
The minus ( less in Latin ) is intended to help distinguish between the actual legal relationships and the ideal legal status in legal dogmatics .
General
While in the case of aliud the wrong item is provided as contractual consideration in the sales contract , in the case of "minus" too little is done compared to the ideal legal status. A defective delivery is called Peius . The minus is always less than the right aimed at in the end, i.e. less than property, but similar to property. The limited personal easement due to the different determination of the right holder compared to the easement is not a minus, but an aliud. The action for preferential satisfaction according to § 805 ZPO is a minus compared to the third party objection action , because the third party can not have the foreclosure declared inadmissible, but only wants to be satisfied from the proceeds of the sale while continuing the execution before the enforcement creditor.
The distinction between Minus and Aliud introduced by the Federal Court of Justice (BGH) also served as a justification for classifying a seizure lien as incongruent cover (because it was an alien compared to the monetary debt ), while the reservation was a minus and therefore congruent cover. Since the claim to credit security is not included as a minus in the insolvency law claim to satisfaction, but is to be regarded as an alien, the granting of security is only congruent if the security buyer was entitled to precisely this security.
civil right
The Civil Law knows the minus especially when expectant right and in the reservation .
Expectant rights
The expectant right is a mere preliminary stage of property , compared to property it is “not an aliud, but a minus of the same nature”. The BGH followed this view in June 1958. “Essentially the same” because - in the same way as with property rights - it is a real right , “minus” because it is not yet fully-fledged property. It is "an independently marketable preliminary stage of property ownership". Thus the legal nature corresponds to the defined benefit right of the full right property, then its the transferability as the ownership of the § § 929 et seq. BGB reveals his Verpfändbarkeit ( § 1273 BGB) / Pfändbarkeit (§ § 808 , § 857 ZPO) or Right to surrender from § 985 BGB as with property.
Also, the expectant right of the security provider in the transfer of ownership (as well as in the transfer of ownership of motor vehicles ) represents a minus respect to the securing property.
Reservation
The BGH does not classify the reservation as a minus compared to the full right, because the legal status of the reservation beneficiary corresponds to that of the full right holder. The notice of conveyance secures the right to procure property, but is a security interest of its own kind and not a minus of the same nature as compared to property. The beneficiary of a reservation has a prospective right to the reserved right with the reservation; in the case of the notice of conveyance, therefore, a prospective right as a minus of the same nature as the property to be acquired. If the reservation is weaker than the full right, it would be a minus; if the reservation effect is identical, there would be an alud.
Procedural law
According to Section 308 (1) ZPO, the court is forbidden to award something that has not been applied for (qualitative and quantitative application binding), so that the court is not allowed to award either a “plus” or an alien; on the other hand, a “minus” is possible, for example through lower compensation than the requested compensation . In litigation , a revision is a minus in relation to an appeal because no new facts can be brought forward.
Individual evidence
- ^ Harm Peter Westermann / Dieter Eickmann / Karl-Heinz Gursky, Property Law , 2011, p. 917
- ↑ Bettina Heiderhoff / Frank Skamel, Execution Law , 2010, p 171
- ↑ BGH, judgment of December 2, 1999, Az .: IX ZR 412/98
- ^ Jan Wilhelm, Property Law , 2007, p. 861
- ↑ Julius von Staudinger / Hans Berg, BGB , 13th edition, 1958, § 929 No. 28 c, p. 622
- ^ BGH, judgment of June 24, 1958, Az .: VIII ZR 205/57
- ↑ Jos Mehrings, Grundzüge des Wirtschaftsprivatrechts , 2015, p. 563
- ↑ BGHZ 83, 395 , 399
- ^ Gerhard Ring / Jana Siebeck / Steffen Woitz, Private Law for Economists , 2010, p. 265
- ↑ BGH, decision of May 9, 2014, Az .: V ZB 123/13
- ↑ Ernst Jaeger / Wolfram Henckel, bankruptcy regulation: Großkommentar , Volume 1, 1997, § 30, Rn. 252
