Use (right)

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Under usage understands law in civil law , the fruits , the yield or the use advantage of a thing or a right .

General

The use of term in the different jurisdictions and with other connotations used. So it is in construction law to § 1 para. 1 BauGB task of urban land , the building and other use of land in a municipality in accordance with the Building Code and prepare to conduct. The Building Utilization Ordinance (BauNVO) provides in § 1 Para. 1 BauNVO that the building areas intended for development can be shown in the land use plan according to the general type of their building use as residential building areas, commercial building areas or special building areas. Here is the use than the cozy , commercial or mixed purposes understood where a building used by its use.

In private law, on the other hand, the use advantage or income that a legal subject can obtain from a thing or a right is in the foreground . Use is the exercise of rights associated with the possession of a thing or a right. Use presupposes that the mother thing is preserved through its use. A use advantage is when the use of an object results in advantages for its user. Capital gains from the sale of an item are not a benefit because the item is not retained for the previous owner.

history

The usufruct ( Latin ususfructus ) was considered in Roman law as the right to use the fruit of a thing without claim to the thing itself. The Latin word for fruiting ("ususfructus") is made up of the use or use ( Latin usus ) and the fruit or the yield ( Latin fructus , "pleasure"). A precondition for the emergence of the legal institution of the “ususfructus” is the existence of the economic idea of ​​the “fructus”, as it emerged from Marcus Porcius Cato Licinianus in 160 BC. Cato Licinianus assessed the leasing of meadows or entire flocks of sheep as profitable. The "ususfructus" was considered to be the real right to use a foreign object while protecting the substance and to draw fruit from it. The personal servituts ( Latin servitutes personae ) summarized usufruct ( Latin usufructus ), right of use without usufruct ( Latin usus ), real right of residence ( Latin habitatio ) and the real right to the work of foreign slaves ( Latin operae servorum ) or animals ( Latin operae animalium ). The stage of free-market rights of use began in Roman law with the consensual contract ( Latin locatio conductio ), the capital usage relationships took place through lending ( Latin mutuo ), rent ( Latin redditum ) and usufruct ( Latin usufructus ).

In the Middle Ages , the Middle High German word “nuzzunge” can be found in the Württemberg document book for the year 1261 , to which the current term of use can be traced back. In 1519, Thomas Murner 's definition, which is still valid today, appeared for the first time , according to which use was the right "to use and need foreign goods ..."; for him, the use ended with the death of the "beneficiary".

Roman law influenced the General Prussian Land Law of June 1794, the French Civil Code of March 1804, the Austrian General Civil Code of June 1811 and the Swiss Civil Code of January 1912. The General Prussian Land Law (APL) defined use as the “right to use and to use someone else's property ”and regulated the matter from §§ 714 ff. APL. The prerequisite was possession of the thing, which granted the user a right in rem. According to § 718 APL the usufructuary had to bear all debts on the thing up to the amount of his usage income. In Austria, use is regulated as "usufruct" in the ABGB, while the civil code applicable in Switzerland recognizes use as "usufruct". Since January 1900 the civil code in Germany regulates the use fragmentarily.

Legal issues

The BGB extends the term of use to things and rights. Therefore § 99 BGB covers direct material fruits (§ 99 Abs. 1 BGB), direct legal fruits (§ 99 Abs. 2 BGB) and indirect material and legal fruits (§ 99 Abs. 3 BGB). Material fruits are not only fruits in the biological sense, but also all organic products and other yields. This particularly includes products that can be obtained repeatedly. Due to the other yield obtained as intended, the use of the land is also a material crop. According to § 100 BGB, uses are the fruits of a thing or a right as well as the advantages that the use of the thing or right grants.

species

All types of fruit are subject to the principle of preservation of substance, according to which the substance of the "mother's thing" (such as the apple tree in relation to its apples ) must be largely preserved. The fruits appear next to the mother's business, which may be worn out or run down through use.

Not all natural products are fruit (felled trees), not all fruits are natural products (rent, loan interest). According to the law, the fruits of a thing represent their products or other yields , while income arises from the use of direct rights or indirect fruits or rights.

Furthermore, a distinction is made between utility and income use. The usage takes place through borrowing , rent , lease , loan or leasing , the use of income through usufruct , real burden or license , patent and other property rights . The use by the user of these rights provides the user with benefits such as driving a rental car , living in a house, using a business space , a storage space or a dock . The benefits of using a property include its use as collateral for loans and the resulting interest rate benefits or the voting rights of a partner .

Legal consequences of uses in private law

Uses, in particular the surrender of unauthorized uses, play a role in the reimbursement of expenses ( Section 256 BGB), claim to surrender ( Section 292 (2) BGB), the ineffectiveness of clauses with inappropriately high remuneration for the use or use of a thing or a right ( § 308 No. 7a BGB), the surrender of the usages upon withdrawal ( § 346 , § 347 BGB); In the case of the purchase contract , the purchaser is entitled to use the goods since the delivery of the object of sale ( § 446 BGB). In the case of a land lease , the main obligation to perform is the contractual transfer of use by the lessor ( § 586 , § 589 BGB). In the case of unjustified enrichment , the obligation to surrender also extends to the use made ( Section 818 (1) BGB). The usufruct entitles the usufructuary according to § 1030 BGB to take advantage of the thing. A contractual lien can also be created in such a way that the pledgee is entitled to use the pledge ( use pledge ; § 1213 BGB). Finally, the estate owner has to surrender the benefits drawn to the heir in accordance with Section 2020 BGB.

meaning

The legal significance of the uses can be seen in their acquisition of rights and the distribution of fruits. In the case of material fruits, their state of development plays a role. Unseparated fruits are an essential part of the mother's business ( § 94 BGB), with their separation at harvest they fall to the person entitled to procure ( § 953 ff. BGB). The usufructuary is entitled to the income when the usufruct is entered in the land register .

International

In Austria and Switzerland , usage is regulated in more detail than in Germany. In Austria the use is called "fruit usufruct" and is regulated in §§ 509 to 520 ABGB . According to Section 509 of the Austrian Civil Code, usufruct is the right to enjoy a thing that is not part of the company "without any restrictions, while protecting its substance". According to § 512 ABGB, the fruit user must assume all burdens - including interest on loans - from the fruit yield. According to § 513 ABGB, the fruit user has the duty to make any repairs from the fruit yield. In Switzerland, the usage is called “usufruct” (writing: “usufruct”) and is regulated in Articles 745 to 778 of the Civil Code. According to Art. 745 of the Civil Code, the usufruct of movable property, land, rights or property can be ordered. As a rule, it confers “full enjoyment of the item” to the entitled person. The usufructuary is obliged to maintain the usufructuary assets in their existence (Art. 764 Paragraph 1 ZGB). According to Art. 749 ZGB, the usufruct ends at the latest with the death of the usufructuary, who is liable for the loss of the thing according to Art. 752 ZGB and has the right to own, use and utilize the thing (Art. 755 ZGB). Art. 767 ZGB requires the usufructuary to insure the item against fire and other dangers in favor of the owner.

In France , the right of use ( French droit d'usufruit , French droit d'usage ) is regulated in Art. 578–636 Civil Code (CC). According to Art. 578 CC, the usufruct grants the user the right to “enjoy the property” as the owner, but must preserve its substance. It can be a movable, immovable, immaterial or consumable thing (Art. 587 CC). The fruits do not belong to the user. In the case of consumable items, the user becomes the owner who has to return items of the same quality and quantity after the usufruct has ended (Art. 587 CC). This corresponds to today's German property loan agreement .

Individual evidence

  1. ↑ Otto Palandt / Jürgen Ellenberger, BGB Commentary , 73rd edition, 2014, § 100 Rn. 1
  2. ↑ Candida Ten Brink, The Justification of the Market Economy in the Roman Republic , 1994, p. 111
  3. ↑ Marcus Porcius Cato Licinianus, De agri cultura , 9, 149 f.
  4. ↑ Iulius Paulus , Digesten , 7.1.1: ( Latin usus fructus est iuris alienis rebus utendi fruendi salua rerum substantia )
  5. ^ Royal State Archives Stuttgart, Württembergisches Urkundenbuch , Volume VI 14, 1894, p. 114
  6. ↑ Thomas Murner, Institutes ein warer origsprung und Fundament des Keyserlichen Rechtsens , 1519, sheet 33 v
  7. ^ Carl Wilhelm Zimmermann (ed.), The general land law for the Prussian states , 1850, p. 391 ff.
  8. ↑ Susanne Würthwein, Compensation for loss of the possibility of using an item or for lost benefits? , 2001, p. 97 ff.
  9. ^ Josef Kohler, Textbook of Civil Law , Volume 2, 1906, § 205
  10. ↑ because the life of the mother's thing (animal) is necessary for the concept of use
  11. ↑ Susanne Würthwein, Compensation for loss of the possibility of using an item or for lost benefits? , 2001, p. 100
  12. ↑ BGH NJW 87, 50
  13. ↑ BGH 39, 186
  14. ↑ BGH 63, 365
  15. ↑ RGZ 118, 266, 268 f.
  16. ↑ Heinz Hübner, General Part of the Civil Code , 1996, p. 188
  17. ↑ RGZ 86, 135, 138
  18. ↑ Ludwig Frey, Textbook of French Civil Law , Volume 2, 1840, p. 167 ff.