Retention (right)

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Retention (from Latin retenere , "back (be) holding") is the outdated expression in German jurisprudence for today's right of retention , which is still used today as a legal term in Austria and Switzerland .

etymology

Withholding, withholding or not relinquishing ( Latin retinere ) concerns both the intention of temporary withholding and permanent withholding. Under Roman law, if the seller did not receive the purchase price immediately , he could keep the goods for a while ( Latin: retinere potest ). From this, the right of retention was defined as the right of the owner of an item to refuse to surrender the item to the owner until a liability has been fulfilled .

A businessman standing in accordance with Art. 241 para. 1 ADHGB from May 1861 for another merchant because of overdue claims a lien on all movable property of the debtor to ( contractor's lien ). The right of retention later included all statutory liens and commercial rights of retention.

Swiss and Austria

In Swiss law, the term retention is a common legal term today. Movable items and securities that are in the possession of the obligee with the will of the debtor can be withheld by the obligee in accordance with Art. 895 ZGB until the claim has been satisfied if the claim is due and its nature is related to the object of retention. The obligee has the right of retention, insofar as third parties do not have rights from previous possession, even if the thing that he has received in good faith does not belong to the debtor. If the debtor is insolvent, the obligee has the right of retention even if his claim is not due ( Art. 897 Paragraph 1 ZGB). In the Swiss Debt Enforcement and Bankruptcy Law , the retention right entitles to a debt collection to debt recovery (Art. 37 para. 2 in conjunction with Art. 151 et seq. SchKG).

In Austria , too , the right of retention in Section 471 of the Austrian Civil Code (ABGB) requires a legal claim to reimbursement of expenses , which can be based on an agreement or on the actual expenditure for a motor vehicle. In principle, this also applies if the owner of the vehicle is not the contractor, but a third party who is authorized to dispose of the vehicle. According to the same judgment, however , according to § 1440 ABGB (among other things) items taken into custody are not an object of retention, which is why the custodian may not refuse to return the custody item based on a right of retention due to him. This provision is intended to prevent abuse of the right of retention.

Right of retention and right of retention

There is an essential difference between the Swiss and Austrian right of retention and the German right of retention in Section 273 of the German Civil Code (BGB) , because the latter is merely of a contractual nature and can also be contractually agreed.

Individual evidence

  1. ^ Carl Luden, The right of retention: a treatise on civil law , 1839, p. 3 f.
  2. ↑ Digest , De actio EMTI et venditi , 19, 1
  3. ^ Carl Luden, Das Retentionsrecht: a civil law treatise , 1839, p. 6
  4. ↑ Marc Hunziker / Michel Pellascio, Repetitorium Debt Enforcement and Bankruptcy Law , 2008, p. 163 f., 168
  5. ↑ OGH , judgment of September 13, 2012, Gz .: 8 Ob 95 / 12x
  6. ^ Karl Oftinger / Rolf Bär, Zurich Commentary: Das Fahrnispfand , Volume IV / 2c, 1981, Art. 895 No. 8