Transfer by way of security

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The transfer of ownership under German law, a contract by which a debtor 's creditors to securing a debt the ownership of a movable object or material entity by way of constructive possession ( § 930 BGB ) via suitable . This means that the guarantor due to an underlying contractual legal security agreement of the property as part of a bailment relationship for further use of the items is up while the ownership of them in favor of the secured party loses. It is usually agreed in the security agreement that the obligee is obliged to transfer ownership back to the debtor as soon as he has repaid his secured debt. Occasionally, it is also agreed that the property will revert to the debtor automatically after the debt has been fulfilled, for example due to a subsequent condition within the meaning of Section 158 (2) BGB ( trustee legal relationship).

Assignments by way of security are of great importance in banking , with credit institutions acting as security buyers.

General

While in Germany some loan securities such as sureties , mortgages or pledges are expressly regulated in the property law of the German Civil Code, other loan securities such as transfer of ownership have developed from the practice of charter . In contrast to an economically comparable pledge, in the case of transfer by way of security, the credit institution granting the loan ( security buyer ) becomes the owner of the items , while the security provider remains the owner for the purpose of use. This construction concerns property law and must be borne by it. In fact, with the ownership constitution of § 930 BGB, there is a form of property acquisition through transfer surrogate , in which the acquiring owner (security buyer) does not have to become the (direct) owner at the same time, but only becomes an indirect owner due to a loan agreement and the selling security provider becomes more direct Owner remains. Therefore, despite the presumption of ownership linked to ownership ( Section 1006, Paragraph 1, Clause 1 BGB), simply because of Section 930 BGB, nobody can rely on the owner being the owner of an item as well.

The rights and obligations arising from the transfer by way of security are determined by the underlying security agreement. The statutory spectrum of rights and duties applies on a subsidiary basis. The guarantor undertakes to preserve the item or the entirety of the item and to notify it accordingly. Disposals and processing are subject to the reservation of approval by the security buyer ( Section 185 BGB). If the secured claim is not met, there is an obligation to surrender on the part of the guarantor ( § 985 BGB). On the other hand, the collateral taker undertakes to leave the collateral seller with the thing or the whole as long as the collateralized obligations are fulfilled. In most cases, there is an agreed prohibition of disposal vis-à-vis third parties in accordance with Section 137 of the German Civil Code (BGB), the non-observance of which can lead to liability for damages. In the event of non-fulfillment of the claim to be secured, the obligee receives the claim for surrender based on a right of exploitation; in the event of fulfillment he is obliged to transfer the property back.

history

The establishment of security rights in rem was already known to Roman law . The fiduciary transfer of ownership ( Latin fiducia ) was a security transfer ( Latin fiducia cum creditore contracta ). It is the oldest form of collateral and gave the collateral taker full ownership of the item handed over to him. Since the fiducia cum creditore contracta was of quiritic legal nature, it could only be brought about by means of manipulation or in iure cessio . As part of the trust agreement , the trustee had to hold the property only for security purposes. In addition, he had the secondary obligation ( Latin pactum fiduciae ) to transfer the property back after repayment of the underlying debt. It was not only possible to secure individual items, but also changing stocks , entire shops ( Latin tabernae ) or assets that would only be acquired in the future. If the underlying claim expired , the debtor could effect the transfer of ownership through the actio fiduciae . A so-called forfeiture clause ( Latin lex commissoria ) guaranteed the lender permanent ownership in the event of a loan default . Under certain conditions, the debtor was allowed to repurchase the thing by prescription ( Latin usucaption ). Since Ulpian , the transfer of ownership by way of security in the 3rd century has been known as a mortgage ( Latin hypotheca ) - even in the case of movable property - if the object of security was to become the property of the lender . Only later did the property lien ( Latin pignus ) emerge , both of which remained in use in parallel until Justinian I abolished the assignment by way of security and replaced the “fiducia” with the terms pledge ( pignus ) or mortgage ( hypotheca ).

In England established in the Middle Ages two types of liens ( English pledges ) on land , the use of lien ( Latin vivum Vadium , English living pledge ), whose fruits to the entire debt service were taken into account, and the mortgage ( Latin mortuum Vadium , English dead pledge ) that was known in France as ( French mort gage ). With her, the fruiting only served for the interest on loans . In England the mortgage was derived from the French mortgage (“mort gage”) .

The common law of the Middle Ages also knew the security transfer, as can be seen from a judgment of the Reichsgericht (RG) from 1889. As early as October 1880, the RG considered it legally permissible "that an asset object is transferred from a debtor to a creditor in order to secure himself because of his personal claim ..."; this should not be seen as a sham deal. At that time the transfer by way of security was still called security (sale) , which the Reichsgericht again held to be permissible in January 1885. The RG even refused to see this as an evasion of the lien on movable property. The term "security property" only came up in 1893 and probably came from Karl Linckelmann, who did not consider the security transfer to be a bypass transaction. In the conception of § 930 BGB in 1899, the current wording was adhered to on the grounds that this legal institution very often serves to satisfy the credit needs of small people who are able to provide security to the creditor with their movable possessions alone and not continuous use could do without. After the Civil Code came into force in January 1900, the Reichsgericht first recognized transfer of ownership as security in March 1904; in November 1904 it considered transfer of ownership as a permissible exercise of freedom of contract and confirmed this decision in a series of subsequent judgments. The transfer by way of security gives the creditor real property , not just externally but internally as well.

The transfer of ownership by way of security is therefore not a construct of judicial legal training , but the legislature has deliberately regulated it, the legal institution of the transfer of ownership was "firmly anchored in civil law at the time the BGB came into force". It is even recognized in Section 216 (2) BGB. Some of the tried literature primarily by Heinrich Hoeniger in 1912 to bring the transfer of ownership to case, but the RG enough in February 1931 even the lack of publicity not the transfer of ownership for their moral standards .

In spite of the highest court rulings , Justus W. Hedemann assumed in 1950 that the transfer of ownership was not expressly regulated in the law, but rather "is read out of the law in a bold thought detour and is almost a prime example of law circumvention or further education". The BGH - as the successor to the RG - dealt with the transfer of ownership for the first time one year after its establishment in September 1951, the legality of which it assumed as a means of security when separating a silent partnership from a profit-sharing loan . A criminal law senate of the BGH had to comment shortly beforehand on one of the disadvantages of security transfers, multiple transfers: “Whether multiple transfers by way of security are to be assessed as embezzlement or fraud depends on whether the perpetrator effectively wants to procure property for the later recipient or whether he knows that he is legally unable to do so ”. The transfer of ownership as security developed into one of the most important means of securing loans, especially from 1965 for small and medium-sized enterprises and in trade ( branch of industry ). The lack of legal regulation has been expanded into a comprehensive right of transfer by way of security through numerous rulings by the BGH - also within the framework of permanent case law.

The English Bill of Sale Acts of 1878 and later provided for a transfer of ownership of movable property without ownership of that property having to pass to the purchaser. In May 1933, French jurisprudence did not recognize the transfer of ownership by the constitution of property by way of security , because it represented a simulated purchase contract and circumvented both the bargaining deposit principle and the prohibition of the expiry clause that was in effect until 2006. Transfer by way of security is not permitted under French law.

In the GDR the transfer of ownership by way of security was met with suspicion as long as the BGB was in force there. It was replaced by the Civil Code in January 1976 . Section 442 (1) sentence 1 ZGB introduced a closed catalog of loan collateral and replaced the transfer by way of security with a non-possessory lien, which, however, was reserved for socialist property (Section 448 (1) ZGB GDR).

In Austria and Switzerland - to this day - security of furniture does not always presuppose the possession of the creditor. In Austria, the transfer by way of security was considered a circumvention of the bargaining deposit principle of § 451 ABGB , but was initially accepted by the Supreme Court in March 1955. The Supreme Court later saw it as a transfer of full rights, but it should not circumvent other laws and is only legally effective if it meets the publicity requirements of the lien. These conditions make the transfer by way of security practically impossible.

procedure

The borrower (protection seller) transfers ownership of a movable property belonging to him to the lender (protection buyer). The transfer of ownership takes place through agreement ( § 929 sentence 1 BGB) on the transfer of ownership and agreement of a constitution of ownership ( § 930 BGB) ( e.g. loan or safekeeping ). The borrower remains the direct owner of the thing, but gives the lender indirect ownership. In relation to the borrower (in the so-called internal relationship), the lender (security buyer) is only the fiduciary owner , as he is regularly bound by the law of obligations on the basis of the security agreement. He may only use the property against the borrower in the event of a breach of the security agreement (non-repayment of the loan - security case ) or use it himself as the owner, but is fundamentally in the disposition and thus the realization of the assigned object according to § 137 BGB not prevented, so that a disposal (e.g. an assignment) that violates the security agreement (e.g. because the security case does not exist) is generally effective. In this case, however, the lender is obliged to compensate the borrower for the damage incurred due to the breach of the security agreement, which only allows the realization in the event of security.

In contrast to the pledge, the security property acquired by the security buyer with the transfer of ownership is a non-accessory security interest, i.e. its existence is not tied to the existence of a specific claim .

Competing Security Rights

Some legal provisions protect the security interests of other creditors and can therefore conflict with the assignment by way of security.

Extended reservation of title

If the security seller acquires an item under extended retention of title and the purchase price has not yet been paid, but he still wants to transfer it to the lender as security, two security interests collide. Since § 933 BGB for the acquisition in good faith requires obtaining direct possession by the transferee (protection buyer), the matter remains despite the good faith of the property of the borrower (buyer retention of title) owned by the conditional vendor. This obstacle can be removed in favor of the transfer of ownership. The supplier's retention of title is offset by the expectant right of the retained purchaser (= collateral provider ) as a claim to transfer of ownership upon full payment. It is legally treated like property that the conditional buyer can convert into full property by paying the purchase price. As part of the transfer by way of security, this expectant right can be transferred to a bank as security, provided it is not encumbered with statutory liens (accessory liability or landlord's lien).

Accessory liability

Accessories liability means that the collateral already for the mortgage liability of another creditor, because it is one of the accessory components of a property. Accessories delivered subject to retention of title are not available for transfer by way of security because the expectant right is already covered by the accessory liability. The mortgagee can then only enable a transfer by way of security in favor of another bank with a declaration of obligation under the law of obligations. Fully paid items and items delivered subject to retention of title are spared from liability for accessories if they are transferred to the property encumbered with land charges. Inventories of merchandise or raw materials are not property accessories, so they can be transferred without hesitation, even if they are subject to retention of title.

Landlord's lien

A lien is created automatically by introducing the things on a rented plot § 562 clause 1 BGB. It does not matter whether the collateral provider transfers the items to the bank as the owner or as a conditional buyer as security. The expectant right is also encumbered with the landlord's lien if the property is only transferred after it has been brought into the rented space. Inventories of merchandise or raw materials are also subject to the landlord's lien. This legal right of lien can only be averted by assignment by way of security before it is brought into the rented premises or by a declaration of waiver by the lessor. If, however, the items have been brought into the rented premises before the transfer by way of security has become effective, they are subject to the priority lessor's lien.

Garnishments

Attachments can also lead to the loss of ownership of the collateral bank if the collateral provider fails to comply with his obligation to provide information - as set out in the collateral assignment contract - and the items in his possession are attached by third parties. As an antidote, the collateral-taking bank has the option of filing a third-party objection action in order to free its collateral from seizure ( Section 771 ZPO ).

Missing property of the collateral provider

Missing ownership of the collateral provider does not provide the collateral-taking bank with collateral ownership. In this case, the guarantor acts as an unauthorized person who may only transfer ownership to the bank if the real owner agrees to this beforehand (consent) Section 185 (1) BGB, it subsequently approves Section 185 (2), 1st old BGB or the collateral provider later acquires ownership of the collateral item, Section 185 (2) BGB. The assurance of the collateral provider contained in the collateral assignment agreements that he is entitled to freely dispose of the collateral is not sufficient for the examination of the ownership structure. Rather, the credit institutions are obliged to inquire and investigate, which must be documented by comprehensive proof of ownership. Multiple transfer of ownership or any other lack of ownership by the collateral provider must be ruled out, also because a bona fide acquisition by banks does not take place during the transfer of ownership.

Types of security transfer

In addition to the transfer of ownership of a single item (e.g. individual motor vehicle; see transfer of ownership of motor vehicles by way of security ), banking practice also recognizes the transfer of property as a whole ( warehouse with changing inventory) in the form of room or marking assignment as security. The principle of specificity must be adhered to for all species, otherwise the transfer of ownership is void .

Area security transfer

The assignment of the room as security includes all security goods that are located in a contractually precisely sketched room (warehouse, hall). As soon as they have been removed from this room, their liability expires. If new goods are brought into the marked area, they are deemed to have been assigned as security without a new agreement. A sketch must be part of the transfer of ownership and take into account subsequent structural or organizational changes. A room security transfer is also advisable if constantly changing stocks are to be transferred, so that a comprehensive and frequently updated listing of the items to be secured with constantly new agreements would be too time-consuming. The banks may then agree with the protection seller that - insofar as the protection seller is or will already be the owner - ownership or, conversely, preferably full and subsidiary rights should be transferred to them, and otherwise the claim to ownership of the collateral should be transferred to the banks is transmitted. The most common case in banking practice is the transfer of constantly changing stocks (raw materials, spare parts, warehouse). The dynamics of such a camp must be taken into account when drafting the security agreement.

Marking security transfer

In the case of marking and security transfer, the security items are not stored in a special room, but together with other non-adhesive items. In this case, the certainty is fulfilled by the fact that the goods intended for security transfer are marked (for example with stickers, signs.) If the certainty is established with ongoing inventory reports, the security property is created by sending the reports signed by the security provider to the bank (so-called shell Transfer by way of security). If only certain objects are to be transferred in a room, markings must show which objects the transfer extends to. The marking can be done on shelves or by attaching signs, which must be reflected in the contract. Spatial separation is only necessary where a clear identification of the objects to be transferred cannot be guaranteed in any other way. This includes the transfer of ownership by security of warehouses with changing inventory or the limitation of transfer of ownership to a subset of an entity that can only be determined quantitatively. However, if an unambiguously identifiable entity is completely or a qualitatively describable subset of it is transferred, spatial separation is not required.

  • Anticipated constitution of possession:

From a legal point of view, these assignments of space and marking can only be made by way of the anticipated constitution of ownership . The normal constitution of possession requires at least the direct possession of the security provider. In the case of the anticipated constitution of ownership, case law allows a constitution of ownership at a point in time when the security provider has not yet become the owner (let alone the owner), but is only supposed to become later. It therefore includes the early agreement on the transfer of ownership by way of security so that a new agreement is no longer required when the property is later acquired. In this way, items can also be assigned by way of security that have not been paid for in full by the security provider and are therefore delivered subject to retention of title. The supplier's retention of title is offset by the prospective right of the reserved purchaser as a claim to transfer of ownership upon full payment. It is legally treated like property that the conditional buyer can convert into full property by paying the purchase price. As part of a transfer by way of security, this expectant right can be transferred to a bank as security, provided that it is not encumbered with statutory liens (e.g. accessory liability or landlord's lien). Things to be produced or created later can also be transferred by way of the anticipated constitution of possession.

Recognition under banking supervisory law

Most legal systems do not know the transfer of ownership by way of security; it is a legal institution that is not expressly provided for in German property law , but is derived from existing regulations and is therefore permissible. It is recognized by the established case law of the Federal Court of Justice . She is also the room in English law Common Law known and there is English security transfer of title to movable goods .

General

Collateral in force since January 2014 banking supervisory law as a credit risk mitigation techniques . If credit collateral is recognized as a credit risk mitigation technique by the Capital Adequacy Regulation (CRR) applicable in all EU member states , it leads to a lower level of equity capital for credit institutions compared to blank loans . As a result, secured loans can be granted up to the lending limit with a more favorable interest rate .

The Capital Adequacy Ordinance mentions some types of loan collateral ( guarantee , assignment , pledging , mortgages ), but not assignment as security. However, it cannot be concluded from this that transfers by way of security are generally out of the question as a credit risk mitigation technique. The requirement for legal validity (Art. 194 (1), Art. 210 a CRR), which is often used in the Capital Adequacy Ordinance for loan collateral, also includes the transfer of ownership, which can be effectively agreed under German law. Like pledging, which is economically close to it, it belongs to the credit risk reduction techniques “with security deposit ” ( real securities ; Art. 4 Para. 1 No. 58 CRR). Art. 194 para. 1 CRR establishes principles for the supervisory recognition of credit risk mitigation techniques, after which loan collateral in particular in all jurisdictions legally (English valid ) and enforceable (English enforceable must be) sufficiently liquid , over time a stable value and a credit event promptly utilizable be have to. The positive correlation between the collateral and the borrower's creditworthiness must not be very high (Art. 194 (4) CRR). A legal risk is in doubt by legal opinion ruled out.

Security transfers

The assignment of movable property as security belongs to the category of property security . As a result of the transfer of ownership, heterogeneous objects to be lent are included in the lending as with no other type of collateral (transfer of ownership of motor vehicles , commodities , merchandise , machines , technical systems , operating and office equipment ). For this, particularly strict requirements are placed on the loan documents and collateral evaluation. This is why the transfer of ownership by way of security may only be taken into account in the IRBA approaches to reduce credit risk, whereas it is not permitted in the standardized approach . In the IRBA approach, the following requirements must be met when transferring ownership according to Art. 199 CRR and 210 CRR:

  • There are liquid markets with publicly available market prices for the rapid realization of the property collateral .
  • The surety must be an accurate description of the property, safety, the right to loan documents for the purpose of safety evaluation, and enable timely collection. In addition, the security provider must be granted the right to inspect the security.
  • at least annual value monitoring is required; if the markets are exposed to strong price fluctuations, the monitoring frequency must be increased;
  • Real security must have priority over other creditor claims and
  • the real security is covered by an appropriate damage insurance .

According to Art 199 (8) CRR, the European Banking Authority (EBA) has to publish a list of the types of property collateral for which institutions using the IRB approach can assume that these conditions are met. They include the existence of liquid markets for the rapid and economic realization of the collateral (Art 199 Paragraph 6 lit a CRR) and the existence of generally recognized, publicly available market prices (Art 199 Paragraph 6 lit b CRR). According to the EBA, there are currently no physical securities for which the fulfillment of these conditions can automatically be assumed; instead, credit institutions must individually meet the conditions listed in the CRR.

If the assignments by way of security do not meet these regulatory requirements, they are to be classified as unsecured loans.

Accounting

Under German commercial law ( § 242 para. 1 and § 246 1 par. HGB ) are accounted for all assets, with the claim for a legal owner is economically meaningless and against the economic usefulness of the matter must resign. According to this, the thing assigned by way of security is not accounted for by the credit institution, but by the borrower because he is considered the beneficial owner under commercial law. The economic perspective has priority over questions of form when accounting. The bank balances the claim secured by the collateral. The IFRS / IAS also prioritize the economic approach in its central accounting principle, that, in determining a facts not primarily necessary to look to its legal form, but on the economic impact is ( English substance over form , IAS 17).

In tax law, too, the assets assigned by way of security according to Section 39 (2) no. 1 AO is not attributed to the credit institution as the legal owner, but rather to the user, since, in contrast to the owner, he exercises actual control over the economic asset in such a way that he generally leaves the owner (credit institution) free of the effects on the asset for the normal useful life can economically exclude (beneficial owner). In practice, it is precisely the aim of the transfer of ownership that the pledger and user can continue to use the thing for his business and thus make a profit in order to repay the loan. The tax law takes into account the actual beneficial ownership and gives it priority over the abstract, purely legal ownership situation.

In the event of the collateral provider's insolvency, the collateral taker has a right to separate payment in accordance with Section 51 No. 1 InsO .

Advantages and disadvantages

What is an advantage for the collateral provider can be a disadvantage for the collateral taker and vice versa.

advantages

The greatest advantage is the lack of possession, which means that the collateral buyer does not have to assume any storage obligations and the collateral provider can continue to use the items. The freedom of form enables the arbitrary written form . The transfer by way of security is not an accessory security, so that the fate of the security property does not depend on the existence of the credit claim, but there is a contractual obligation through the security contract. Due to the clear regulation of § 51 No. 1 InsO, the buyer of security is another person entitled to separate separation and thus has insolvency-proof security.

disadvantage

The usual publicity in property law is completely absent, which can be an advantage for the collateral provider as "hidden security", because the transfer of ownership is not recognizable from his balance sheet . However, the collateral taker must trust that the collateral provider does not sell the items as the alleged owner and vice versa. However, this fails in the event of a sale by the security buyer in the case of acquisition of good faith according to § 933 BGB due to the lack of transfer . The collateral taker does not receive collateral ownership if the objects are not (yet) owned by the collateral provider. For the time being, this is the case with retention of title and permanently if the collateral provider is no longer the owner because he has previously transferred the property to someone else.

Risks

International

In international German private law, whether a transfer by way of security has arisen effectively according to Art. 43 Paragraph 3 EGBGB is based on the law of the country in which it originated; questions of property law are to be assessed according to the law of the country in which the matter is located.

Switzerland

In Switzerland , assignment by way of security is recognized as permissible, although it is not regulated by law. If a claim is already secured by a collateral assignment, not allowed to arrest be granted. Unless the debtor has contractually waived the Latin benficium excecussionis realis . However, since the transfer by way of security violates the pledge principle (Art. 924 ZGB ), it is not permitted.

Austria

In Austria , transfer by way of security is a way of securing claims in rem. The title is a security agreement, in the area of ​​the mode the principle of lien of publicity (analogous to § 451 ABGB ) is to be complied with: For the handing over of movable property the bargaining principle applies, so that physical handover, handover short hand, handover by possession instruction and (under the appropriate conditions ) Handover by sign is possible, but the constitution of possession is not an option as a type of handover (see Lien - Austrian Law). A land register entry is required for immovable property. The security owner gains full ownership and has to transfer ownership back after the secured claim has been met. Due to the security purpose and the similarity to the pledgee, the security owner has a right to separate if the security provider becomes insolvent.

Netherlands

The Dutch Burgerlijk Wetboek (BW) has prohibited transfer of ownership by way of security since 1992 (Art. 3:84 para. 3 BW).

England and USA

The 1882 came into force Bill of Sale Act allows today in England the "furniture mortgage" ( English chattel mortgage ), making it one of the security transfer corresponding legal institution, even if they (sec 9 Bill of Sale Act.) - unlike the security transfer - accessory is. The (over this burden English legal mortgage ) issued certificate is English bill of sale (literally, deed of purchase, sale Note '). In this way, property can be transferred permanently ( English absolute bill of sale ) or as a precaution ( English security bill of sale ). In order to protect creditors, this is combined with a registration requirement.

In the USA , Art. 9 UCC enables a furniture mortgage with the uniform security ( English security instrument ), which corresponds to the transfer of ownership if it is sufficiently specific.

France

In France , the introduction of a transfer by way of security ( French fiducie ) failed in 1992, so that the third-party acquisition of property through the constitution of property is still not permitted. Rather, according to Art. 2336 Civil Code , one knows the furniture mortgage ( French gage ) on valuable items (motor vehicles, ships, airplanes), which is possible without transfer of ownership to the creditor and then requires entry in a pledge register.

Italy

In Italy, no handover was required to procure ownership, so that transfers by way of security were possible until 1983 and were then prevented by the case law.

Brazil

In Brazil , the transfer of ownership of movable property by way of security ( Portuguese : alienação fiduciária em garantia ) according to Art. 66 Capital Markets Act (LMC) was known in Brazil since 1965 , with which banks could issue cheap consumer loans . It was repealed in 2004, whereby the rules on the transfer by way of security are now contained in Art. 1361 ff. Código Civil.

Web links

Individual evidence

  1. ↑ August Ludwig Reyscher / Wilhelm Eduard Wilda (ed.), Journal for German Law and German Jurisprudence , Volumes 7-8, 1842, p. 309
  2. ↑ Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher), ISBN 3-205-07171-9 , pp. 179–190.
  3. ^ Max Kaser , Rolf Knütel : Römisches Privatrecht , 2005, p. 149.
  4. ^ William Smith (ed.), Dictionary of Greek and Roman antiquities , 1848, p. 916
  5. ↑ Heinrich Honsell, Römisches Recht , 2015, p. 76 ff.
  6. ^ Gaius , Digesten , II, § 59/60
  7. ↑ Ulpian , Digesten , July 13, September 2
  8. ↑ Hans Josef Wieling, Property Law: Property, possession and rights to movable property , Vol. 1, 1990, p. 800
  9. ^ Theo Mayer-Maly , Römisches Recht , 1999, p. 86
  10. ↑ Mark Aschenbrenner, Transfer by way of security in German, English and Brazilian law , 2014, p. 30
  11. ↑ RGZ 24, 307.
  12. ^ RG, judgment of October 9, 1880; Ref .: I 395/80, RGZ 2, 168, 170.
  13. ↑ RGZ 2, 168.
  14. ^ RG , judgment of January 10, 1885, Az .: I 431/84, RGZ 13, 200, 202.
  15. ↑ RGZ 26, 180.
  16. ↑ Karl Linckelmann: Die Sicherheitsüüberignungen , in: Archive for Civil Law, Volume 7, 1893, pp. 209 ff.
  17. ^ BGB Protocols III, Property Law , 1899, p. 3690
  18. ^ RG, judgment of March 11, 1904, RGZ 59, 146, 147
  19. ^ RG, judgment of November 8, 1904, Az .: Z 059, pp. 146-149.
  20. ^ RG, judgment of April 25, 1902
  21. ↑ Klaus Luig , in: Heinz Mohnhaupt / Ulrich Falk (eds.), Das Bürgerliche Gesetzbuch und seine Richter , 2000, pp. 383, 392.
  22. ^ Heinrich Hoeniger : The security transfer of warehouses , 1912.
  23. ↑ RGZ 132, 182.
  24. ^ Justus W. Hedemann : Property Law of the Civil Code , 1950, p. 408.
  25. ^ BGH , judgment of September 19, 1951, Az .: II ZR 20/51.
  26. ^ BGH, judgment of June 19, 1951, Az .: 1 StR 42/51.
  27. ↑ Stephan Lorenz : Basic Knowledge - Civil Law: The Transfer by Security , in: JuS 2011, 493.
  28. ↑ Mark Aschenbrenner, Transfer by way of security in German, English and Brazilian law , 2014, p. 42 .
  29. ↑ Req. 24 May 1933, DP 1933, 378
  30. ↑ Theodor Schilling : Propertyless Mobiliarsicherheiten in National and International Private Law , 1985, p. 124.
  31. ^ OGH , judgment of March 9, 1955, Az: Ob 12/55.
  32. ↑ Supreme Court ÖBA 1998 216th
  33. ↑ BGH WM 1961, 668
  34. ↑ BGH WM 1992, 600
  35. ^ BGH WM 1963, 1186.
  36. ↑ The provisions of § 933 , § 934 BGB are governed by the principle that the legislature does not allow the creation of indirect possession to be sufficient for acquisition in good faith; so also in the instructive case BGH WM 1968, 604; see web links
  37. ↑ So already RGZ 52, 385 and then also BGH 21, 52, 55.
  38. ^ BGH WM 1977, 219.
  39. ^ BGH WM 1977, 218.
  40. ^ BGH WM 1983, 1409.
  41. ^ BGH WM 1993, 2161.
  42. ↑ BGH WM 1962, 504.
  43. ↑ In the Capital Adequacy Ordinance called "Real Estate Securities"
  44. ↑ Thorsten Gendrisch / Walter Gruber / Ronny Hahn (eds.): Handbuch Solvableness , 2014, p. 186.
  45. ↑ European Banking Authority of July 2, 2014, EBA publishes lists for the calculation of capital requirements for credit risk
  46. ↑ Stefan Kettler: Retention of title and transfer by way of security to movable property in the law of the Russian Federation , 2008, p. 289 ff.
  47. ↑ See BGE 119 II 326 ff .; Dieter Zobl : Comment, System. Part before ZGB 884 , N 1302; Nicolas de Gottrau: Transfer de propriété et cession à fin de garantie: principes et applications dans le domaine bancaire , in: Nicolas Iynedjian, Sûretés et garanties bancaires , Lausanne 1997, p. 177 f.
  48. ↑ Marc Hunziker / Michel Pellascio: Repetitorium Debt Enforcement and Bankruptcy Law , 2012, p. 288 (controversial).
  49. ^ Humphrey Waldock : The Law of Mortgages , 1950, p. 75.
  50. ↑ Barbara Reich: The silent lien of the Netherlands , 2006, p. 52 .
  51. ↑ Barbara Reich: The silent lien of the Netherlands , 2006, p. 62.
  52. ↑ Mark Aschenbrenner: Transfer by way of security in German, English and Brazilian law , 2014, p. 211.