Legal certificate

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Legal appearance is the outward appearance of the existence of a right . The legal certificate is not a right and therefore does not grant any right. Exceptionally, the law protects bona fide legal subjects who trust in the accuracy of a statement or a lack of authority .

General

A legal certificate is created when legal and actual reality diverge and someone justifiably trusts that a certain - actually nonexistent - legal situation exists. Then the legal certificate becomes a legal reality (so-called positive trust correspondence ). The legal certificate is a legal figure that occurs frequently in German law and is intended to ensure legal certainty in everyday and economic life . In order to create the desired legal peace , the legislature has created legal facts in which a given legal consequence occurs regardless of how the real legal situation is presented. From a legal point of view, an attributable pseudo- fact is created from which an objective observer can derive the appearance of a certain current legal situation. The person relying on the legal certificate must be in good faith , have knowledge of the false facts and make a disposition that is causal for his trust . The legal consequence is the equality of legal appearance and legal reality. The lawyer Moritz Wellspacher (1871–1923) already defined the general legal certificate principle in 1906 as follows: “Anyone who acts in a legal transaction trusting an external fact that, according to the law or public opinion, forms the appearance of a certain right, legal relationship or a legally relevant moment is Protected in his trust, if that fact came about with the help of the person to whom the protection of legitimate expectations is detrimental. "

Doctrine of legal appearances

The legal certificate results from the law and is legally expressed through assumptions . The legal certificate is constructed as a fact of fiction , because the law makes a - mostly refutable - presumption. The limits of the law bill draws the Supreme Court as follows: "From the confidence of a warrant can derive no further claims than he would have if the warrant of the real legal situation would correspond." Shortcomings in the capacity is not eliminated by the warrant.

The basic idea of ​​the doctrine of legal appearance is contained in several provisions in the BGB, in particular in § § 171 , § 405 , § 409 BGB. In summary, the person who has caused a legal certificate in an attributable manner should be less worthy of protection than the bona fide third party relying on this legal certificate and must allow himself to be treated according to the legal certificate vis-à-vis the bona fide third party because he awakened him.

requirements

A protected by law warrant exists when the following conditions are met: First, it must in some manner by a warrant offense in the form of a perceptible statement or action have been created, the to by warrant Protected familiar . By the guns out (causal) statements made or actions taken are worthy of protection because of its good faith. Imputability means that the causation of facts that trigger a false image of reality is at the expense of the causer, if this consequence was recognizable to him and he had the opportunity to eliminate the misleading facts.

If these conditions exist in a particular case, a warrant is produced by operation of law, with the result that the actual conditions of the legal presumption be equated and a positive Legitimate occurs (so-called warrant equivalent ).

Occurrence and species

The legal certificate occurs in almost all areas of law . German civil law knows the legal certificate in particular for general questions of power of attorney or in the law on the owner-owner relationship . The certificate of inheritance issued after an inheritance is subject to legal rules, as are rules with regard to commercial and company law . The BGH's raisin theory is of particular importance here .

All legal issues have a common structure. According to this, third parties in legal transactions should be protected if they could rely on the existence of a fact from the recognizable event, even if this fact is actually not met. What is common to all legal offenses is that a bad creditor should not be allowed to invoke the legal certificate. However, the borderline between good and bad faith is regulated differently. While the grossly negligent lack of knowledge of the actual circumstances for bad faith is sufficient for possession as a starting point for the legal certificate, the legal certificate of most public registers is so strong that only positive knowledge of the actual - deviating - circumstances justifies bad faith.

Legal certificate from possession

The methodology of the legal certificate theory can best be explained with the legal certificate resulting from possession . Anyone who owns a movable thing creates the legal impression for others that he is also its owner ( Section 1006 (1) BGB). However, this provision makes it clear that this does not apply to stolen , lost or otherwise lost items. The legal certificate of an owner exists for all other (legal) ownership relationships, for example if a tenant is the owner of a movable property. If he sells the rented item, his possession creates the legal certificate of ownership for the bona fide purchaser according to § 1006 BGB, which is why the bona fide purchaser can legally acquire property ( § 932 para. 1 BGB). It is a rebuttable presumption that can only be destroyed by the bad faith of the other. The legal consequence is that the landlord's property has perished.

Legal certificate from public belief

The public faith plays in particular in the registration in public registers a role, because even the participation of the registry courts brings increased accuracy guarantee. The entries in public registers enjoy public faith. This public belief is linked to a legal certificate in such a way that, for example, according to Section 892 (1) BGB, the entries in the land register are considered correct for the bona fide acquirer of rights, provided that no objection is entered. If these restrictions (good faith, contradiction) do not exist, the entries in the land register are irrefutably correct, even if the real land register situation is different.

Entries in the commercial , cooperative , association and property law registers in particular enjoy extensive legal protection. The protection of good faith refers to the non-existence of a fact not entered in these registers (§ § 68 , § 70 , § 1412 BGB; § 15 HGB, § 29 para. 1 and § 86 GenG). For example, Section 15 of the HGB protects trust in the legal certificate if the entry in a commercial register does not correspond to reality. According to Section 15 (3) of the German Commercial Code (HGB), someone can refer to an incorrect entry if they are in good faith.

Powers of attorney

In the right of representation , the proxy power of attorney and the tolerance power of attorney enjoy a special legal certificate. The point is that someone presents himself as a legal representative or legal representative and that third parties trust that he really is. Both legal powers of attorney differ only in the knowledge of the person represented. In the case of the proxy power of attorney, the person represented has no knowledge of the alleged representative; in the case of the tolerance power of attorney, the person represented has knowledge, but he tolerates the act of representation. In both cases, the person represented must allow himself to be treated as if he had given a power of attorney.

Commercial law

In commercial law , trust in a legal certificate is particularly protected. The HGB does not recognize certain formal requirements of the BGB so that trade can be processed more quickly . In addition, commercial law assumes that merchants are more versed in commercial transactions than consumers who are particularly worthy of protection . Anyone who gives the appearance of being a businessman or a partner must allow themselves to be treated like a businessman or partner. The appearance begins with the commercial confirmation letter . In the case of an offer, its content is considered correct if the accepting party does not object immediately ; his silence counts as acceptance ( Section 362 (1) HGB). Even if there are unauthorized commission agents , carriers , freight forwarders or warehouse keepers to whom most of the regulations on commercial transactions apply, the legal certificate justifies the application of these regulations to the non-trader as well.

Anyone who declares they are a merchant initiates a corresponding legal certificate with third parties. A company is only allowed to be run by a businessman; third parties in good faith can rely on it ( bogus businessman ). If someone acts as an authorized signatory without permission and his principal does not arrange for a correction, then third parties in good faith can see him as a real authorized signatory (false proxy). If a GmbH fails to use the legal form addition according to § 4 GmbHG, the legal form of personal and unlimited liability of a partner in addition to the company assets can arise and justify personal liability according to § 179 BGB.

Public law

In the public law of the Federal Republic of Germany, the concept of the legal certificate plays a lesser role, since the public administration is bound by statute and law ( Art. 20 para. 3 Basic Law ); As a rule, therefore, it must not base its actions on just appearances, but is obliged to investigate the facts (see, however, risk of appearances ). The problems of reliance on certain circumstances are usually dealt with under the term protection of legitimate expectations . What is meant here is always the citizen's trust in the existence of a certain legal position. The administration itself cannot invoke a protection of legitimate expectations to the detriment of the citizen.

For example, the "legal certificate of an administrative act " can exist if official action does not actually constitute an administrative act, but it looks as if an administrative act should be issued (e.g. a letter is expressly referred to as an administrative act). Then the same legal protection options are given as with an administrative act.

The German jurisprudence has also recognized within narrow limits that void laws can create a legal certificate on which a citizen's trust can be based.

Other legal facts

  • It is assumed that a businessman is also authorized to dispose as the owner if he claims this ( Section 366 of the German Commercial Code ). Any third party in good faith can acquire property from him.
  • It is assumed that someone who is identified as an heir in the certificate of inheritance is actually an heir ( § 2365 BGB).

International

Switzerland

One of the most important goals of Art. 933 ZGB is traffic protection, which is also primarily served by the legal theory. While in Germany the legal certificate correspondence creates a positive protection of trust, Swiss law only provides for damages ( negative protection of trust ). In contrast to Germany, according to Art. 39 OR, the person represented is only obliged to be represented by his or her will, but not on the basis of legal certification, so that the representative without power of attorney is liable for compensation.

Austria

The legal certificate is also a widespread legal construct in Austria. In particular, it applies to the presumption of ownership in accordance with Section 323 of the Austrian Civil Code (ABGB) or in the case of powers of attorney (administrator and shop authorization; Sections 1029 sentence 2 and 1030 ABGB). However, in § 323 ABGB - as in § 1006 (1) BGB in Germany - the ownership of the owner is not assumed, but only the legality, which is of little practical importance.

Anglo-Saxon legal family

In common law the legal appearance plays ( English apparent legality ) a similarly prominent role as under German law.

literature

Web links

Individual evidence

  1. ↑ Moritz Wellspacher, Reliance on external events in the civil rights , 1906, S. 267 f.
  2. ↑ BGHZ 12, 105, 109
  3. ↑ BGHZ 115, 178, 181
  4. ↑ Lutz Schade, Commercial and Corporate Law , 2012, p. 10.
  5. ↑ Jan Eltzschick / Jens Wenzel, The Beginners' Examination in the BGB , 2007, p. 1. 92
  6. ↑ Chris Thomale, Achievement as Freedom , 2012, p. 67.
  7. ↑ Petra Buck, Knowledge and Legal Person , 2001, p. 62.
  8. ↑ Peter Bülow, Commercial Law , 2009, p. 31.
  9. ↑ Lutz Schade, Commercial and Corporate Law , 2012, p. 10
  10. ↑ Peter Bülow, Commercial Law , 2009, p. 32.
  11. ↑ Peter Ulmer, Großkommentar HGB , 1995, p. 346
  12. ↑ BGH NJW 2007, 1529.
  13. ↑ cf. Decision of the Federal Constitutional Court BVerfGE 53, 115 .
  14. ↑ Walter Güller: involuntary loss of property and good faith acquisition of driving skills , diss. 1924, p. 9.
  15. ^ Arnold F. Rusch, Good faith acquisition of driving skills as an application of the legal theory. In: Jusletter dated January 28, 2008, p. 2. ( Memento of the original dated October 23, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 448 kB) @1@ 2Template: Webachiv / IABot / www.arnoldrusch.ch
  16. ↑ Eugen Bucher: substitute , without year, p. 612.
  17. ↑ Peter Apathy et al. a .: Austrian bank contract law. Volume IX, 2012, p. 283.
  18. ↑ The author opposes the widespread view that a challenge is incompatible with the nature of the legal appearance and advocates the fundamental analogous applicability of the rules of challenge to the pseudo-facts examined.