Principle of publicity
In property law, the principle of disclosure is a principle that has not been codified by law, according to which the legal situation in rem must be visible to everyone at all times and externally.
General
Of the five principles governing property law ( PASTA after the first letter; in addition, the principle of absoluteness , specialty , compulsory type and the principle of abstraction ), the principle of publicity is the overarching one, because it determines both the types of rights and the dispositions . It is intended to use externally recognizable circumstances to provide clarity as to who a certain thing belongs to. In the case of movable objects, the publicity is the possession , in the case of land (and other land rights) the land register .
The requirement of disclosure often comes into conflict with other needs of legal transactions, such as flexible or fast processing of legal relationships or a restriction of information in party transactions that expects discretion. For this reason, the principle is sometimes breached by law, such as by trust or surrogation .
Legal regulation
The principle of publicity is expressed in various property law provisions. A distinction must be made between movable property and real estate.
Moveable things
In favor of the immediate owner of a movable thing, it is assumed that he is also its owner ( Section 1006 (1) BGB ). Immediate possession is sufficient for the (rebuttable) presumption that the immediate owner is also the owner of a particular thing. If the immediate owner (and at the same time owner) wants to sell this property, the bona fide purchaser also becomes the new owner by handing it over . Acquisition in good faith is based on the principle of publicity. However, if possession and property are separated from one another, the legal assignment is no longer evident. If the owner rents , lends or hands over something for safekeeping , it is no longer recognizable for legal transactions that the tenant, borrower or custodian who is directly in possession is not the owner. The conditional buyer of goods delivered subject to retention of title or the security provider in the case of an item serving as collateral is no longer the owner, but the owner. Thus, the direct possession does not always clarify the recognizability of the legal situation in rem. In all of these cases of separation of property and possession, a bona fide purchaser can nevertheless become the legal owner. However, according to Section 935 (1) of the German Civil Code (BGB) , someone can not acquire property from transfer surrogates if the item has been stolen , lost or lost . The principle of publicity for the right of lien according to § 1205 BGB is clearly recognizable . The pledgee only becomes the owner, but is entitled to legally sell the pledge and give the purchaser ownership of it when it is ready for pledge.
Land
In the case of immovable property (land and rights equivalent to land ), the principle of disclosure is guaranteed by the entry in the land register ( § 873 BGB). The presumption of ownership within the scope of the principle of publicity results from § 891 Paragraph 1 BGB, according to which it is legally presumed that the registered property belongs to the owner. The property owner is therefore who is noted in the land register in Section I as the owner without any contradiction being entered. In the land register law , a distinction is made between the material and the formal principle of publicity. The substantive principle of publicity concerns the public belief of the land register, the formal principle of publicity is realized through the right to inspect the land register .
Individual evidence
- ^ Jan Wilhelm, Property Law , 2007, II.1, Rn. 12
- ^ Eduard Picker in AcP 188 [1988], 511 and Michael Martinek there , 573.
- ↑ Hans Hermann Seiler : Past and present in civil law , Heymanns, Cologne 2005, ISBN = 978-3-452-25387-3, p. 262.
- ↑ Georg Bitter, legal entity for third-party accounts , 2006, p. 149
