Probatio diabolica
As probatio diabolica ( lat. Devilish argument) is called in classical Roman law such. B. also in Austrian property law the problem of the claimant with the property claim to prove his property . Primarily, this proof takes place in a derivative way , i.e. by proving the property of the foreman, and again proof of the property of the foreman of the foreman, etc. until an original acquisition has been made at some point in this chain (for example through bona fide acquisition by unauthorized persons (in Austria ), by possession or occupation ).
The probatio diabolica causes often the plaintiff (presumed) owner instead of property to suit Actio Publiciana attacks (as far as this with regard to the qualification of property is possible).
The applicable German driving law solves the problem with the surrender claim through the presumption of ownership in favor of the previous owner in accordance with § 1006 Paragraph 2 BGB. It releases the alleged owner from proving the chain of ownership; it is enough for him to state his previous possessions. Nevertheless, he must refute the presumption of ownership for the current owner in accordance with Section 1006, Paragraph 1, Clause 1 (possibly in conjunction with Paragraph 3 of the German Civil Code) in order to enforce his claim. Swiss law provides for the same ( Art. 930 Paragraph 2 ZGB).
Individual evidence
- ↑ Münch: § 1006 BGB . In: Soergel (Hrsg.): Bürgerliches Gesetzbuch . tape 15/1 , property law 2/1, p. Marg. 1 (as of autumn 2006).
- ^ Gierke, Otto von: The importance of driving possession for contentious law according to the civil code for the German Reich . Jena 1897, p. 28 ( archive.org ).
