Closer right

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The right of approach, purchase right, right of solution , right of retraction or right of draw was a kind of right of first refusal . It was the right of the better entitled (relatives, fellow villagers, citizen, etc.) to take possession of a sold item within a certain period of time against reimbursement of the purchase price and the costs incurred to the less entitled (outsider, etc.). It can be used in the southern German-Austrian-Swiss region for the 15th – 19th centuries. Century can be proven.

terminology

Various terms were used for the law of proximity. Often the terms "Aufstandsrecht" and "Anstandsrecht" or "Anfallrecht" are used, in Switzerland "Zugrecht" or "Zug". In the German legal dictionary , the closer law appears among other things under "Beisendung", "Solution / Solution" and "Retrakt".

In all cases, the same process is meant: If an object changed hands, then a third party, “closer authorized person”, could then stand in the trade (purchase or exchange) and buy the goods themselves against reimbursement of the purchase price. It is therefore often referred to as a solver or single column . In Switzerland, the common verb for the process is to draw because someone “pulls in” a piece of property; the person who perceives the train right, is the Züger .

purpose

The purpose of the law of proximity was to hold the family and cooperative assets together, to exclude strangers from the acquisition of goods and to reinforce existing relationships of rule.

From such family associations larger local communities emerged later. Their common property (commons and Alps) was also not allowed to suffer any loss of substance. That is why the right of proximity was not only available to blood relatives, but also to every other "pastor and parishioner". In Pfronten , for example, it was seen as part of “parish justice”.

Objects

The right of proximity could only be exercised in the Hochstiftisches Amtmannamt Pfronten when selling land and houses. In other Swabian territories it was also used for movable objects. Firewood and construction wood, horses and horned cattle, fruits, yarn and dung are mentioned by name in the prince monastery of Kempten .

Solver

According to a Princely Kemptic ordinance of September 17, 1792, the right of access was due:

  • first the blood relatives up to the 4th degree, with men having preference, and
  • then a community (or members of the community as "community owners who have stood in society and community ... with one another").
  • Only after this group of people did foreigners also have the right to a solution. However, the residents were preferred in the case of land or the owners of co-ownership rights in the case of houses. In the rule of Trauchburg, on the other hand, no stranger was entitled to the right of resolution.
  • In the statutes of some Swabian areas, e.g. B. in Wangen , it was also stipulated that the "valid or interest lord" was allowed to redeem an item. According to the contract of 1389, the Abbot of St. Ulrich in Augsburg already had the right to purchase interest loans there.

If two equals wanted to assert their rights of proximity in Lindau , the rule was that the one who got in touch first came into play. If both made their demands at the same time, then the lot had to decide.

Solution contract

A replacement could only take place in the form of a legally binding protocol. A solver had to be informed of all the original purchase conditions that he then had to fulfill to the buyer. This also included the reimbursement of the cost of the so-called Leykauf, the payment of which made a purchase legally valid. It was consumed by both contract partners and usually had to be paid for by the buyer. Improvements that a buyer had made to an object of purchase (cultivation of fields, repairs to housing) had to be paid for. A redeemer, on the other hand, was obliged, at the request of the buyer, to take an oath that he would not exercise the right to redeem for others and that he would not pass on the redeemed goods before a certain period (Kempten: one to two years). In order to make a solution more difficult, the purchase price was sometimes given higher than what was actually to be paid for the goods. In this case, the purchase was already invalid and a solution could therefore not be found.

Deadlines

The period within which the closer right could be exercised varied. The period of four weeks, sometimes four weeks and three days, was generally accepted. In the Pfronten administrative office, however, a distinction was made between dwellings and properties. The former had to be redeemed within the four-week period, while the latter could still be asserted after a year and a day. For buyers who came from abroad and did not have the right of home here, the period could even be extended to up to 15 years. In the Rottenbuch rule , the one-year deadline was common. On the other hand, a redeemer had much less time in the Trauchburg rule. The four-week period already applied to land, while houses with gardens had to be replaced within 15 days, houses alone within three days. In Switzerland, the period lasted between four weeks and a year and a half, depending on the proximity of those entitled.

In the case of movable properties for sale, on the other hand, it was only possible to redeem them at short notice. In Rottenbuch it had to be done within 24 hours and Lindau law stipulated the period in which the goods had not yet been removed.

history

The law of proximity took the place of the older right of appeal and, from the 16th century, was given an above-average detailed order in the countless city and land rights. In the course of the legal reorganization of the Napoleonic period, it was abolished nationwide and only reintroduced in individual territories in a more or less restricted form after 1815, until it was finally repealed by the modernizing legislation in the course of the 19th century.

literature

  • Eugen Huber : System and history of Swiss private law. Volume 3: Reich, Basel 1889, pp. 265-271; Volume 4: Reich, Basel 1893, pp. 717–728.
  • Bertold Pölcher: The right to solve in Pfronten . In: Around the Falkenstein. Volume 4, Issue 10, 2012, p. 337.
  • Georg Michael von Weber: Representation of the entire provincial and statutory rights of the Kingdom of Bavaria , 1840, 4th volume (part of Swabia and Neuburg, 2 volumes).
  • German Legal Dictionary , Volume IX, Weimar 1992–1996, Col. 1338 f., Article Näherrecht ( digitized version ).
  • Closer right . In: Concise Dictionary of German Legal History , Volume III, Berlin 1984, Sp. 827–831.
  • Entitlement right . In: Swabian Dictionary , Volume II, Tübingen 1904, Sp. 651.
  • Schweizerisches Idiotikon , Volume VI, Frauenfeld 1909, Col. 307 f., Article Zugrëcht ( digitized version ); Volume XVII, Basel 2015 ff., Col. 485–487, Article Zug, Bed. 10b ( digitized version ), Article Züger, draw pending.

Individual evidence

  1. ↑ a b closer right . In: Concise Dictionary of German Legal History, Volume III, Sp. 827.
  2. ↑ Reinhard Riepl: Dictionary on family and homeland research in Bavaria and Austria. 3rd edition 2009, p. 116 ISBN 978-3-00-028274-4 .
  3. ↑ a b Schweizerisches Idiotikon, Volume VI, Col. 307 f., Article Zugrëcht ( digitized version ); Volume XVII, Col. 485, Article Zug, Bed. 10b ( digitized version ); both accessed on August 7, 2019.
  4. ↑ Proximity Law . In: Heidelberg Academy of Sciences (Hrsg.): German legal dictionary . tape 9 , issue 9/10 (edited by Heino Speer and others). Hermann Böhlaus successor, Weimar 1996, ISBN 3-7400-0983-7 , Sp. 1338–1339 ( adw.uni-heidelberg.de ).
  5. ^ Weber, Kempten, p. 122
  6. ↑ Schweizerisches Idiotikon, Volume XVII, Article Züger, still pending.
  7. ↑ Letter protocols 1778.625.1
  8. ^ Privileges of parishioners (lawyers)
  9. ↑ Letter protocols 1730.121.2
  10. ↑ StAA, Augsburg Nursing Offices No. 249–259, letter protocols from the Pfronten administrative office 1724–1792 (letter protocols)
  11. ^ Weber, Kempten, p. 129
  12. ^ Weber, Wangen, p. 849
  13. ^ Weber, Kempten, p. 124
  14. ^ Weber, Roggenburg, p. 1408
  15. ^ Weber, Lindau, p. 754
  16. ^ Weber, Trauchburg, p. 892
  17. ^ Weber, Wangen, p. 849
  18. ↑ Hermann Fischer: Swabian Dictionary (Volume II, Column 651)
  19. ^ Weber, Lindau, p. 750
  20. ↑ Riepl, p. 253
  21. ↑ z. B. Protocols of letters 1786.037.1
  22. ^ Weber, Mindelheim, p. 872
  23. ^ Weber, Dirlewang, p. 877
  24. ↑ Letter protocols 1785.742.1
  25. ^ Weber, Rottenbuch, p. 885
  26. ^ Weber, Lindau, p. 757
  27. ^ Eugen Huber: System and history of Swiss private law. Volume 4. Reich, Basel 1893, pp. 717–728.