In Roman law , the concept of thing encompassed everything that is subject to human appropriation and that serves its use. In ancient Roman law one knew the division into res mancipi ( land , slaves , draft and pack animals ) and other things that could be transferred form-free by way of the traditio ex iusta causa ( Latin res nec mancipi ). Gaius made a distinction between physical things ( Latin res corporales ), "which one can touch" ( Latin quae tangi possunt ), all other things ( Latin res nec mancipi ) and claims / liabilities ( Latin res incorporales ). The Romans divided these things into legal relations ( Latin res in commercio ) and legal relations ( state assets ; Latin res extra commercium ).
The General Prussian Land Law (APL) of June 1794 designated as a thing "what the object of a right or a liability can be" (I 2, § 1 APL). In the Austrian ABGB of January 1812, the legal duality of person and thing is still clearly expressed today, because "everything that is different from the person and serves the needs of people is called a thing in the legal sense" ( ABGB ). The Swiss Civil Code of January 1912, however, does not define the matter.
While older German laws such as ZPO from October 1879 understand things to mean all legal objects, the BGB is based on a narrower technical term. According to BGB “only physical objects” belong to the items. However, the BGB only adheres to this narrower scope of terms in property law . Another technical term, for example, is required by (2) BGB.
Matters of civil law
The legal objects include physical objects (movable objects, land and rights equivalent to real property ( BGB)), animals ( BGB), intangible goods ( concessions , licenses , trademark rights , patents , copyrights or property rights such as designs or utility models ) and other rights ( such as rights in rem or claims ). The things stand opposite the people and are connected to them by legal relationships or, in exceptional cases, not ( abandoned thing ). The things also include aggregates .
The matter that can be defined in space is one thing, regardless of whether it is solid, liquid or gaseous (state of aggregation ). It must be delimited and tangible (controllable). Air , groundwater , flowing electrical energy or light are not things as such, but motor gasoline in a canister or gas in a pressure bottle are . However, what is decisive is the view of the road , not the physics . The body of living people, as well as the unseparated parts of the human body and, in the majority opinion, fixed implants are not things in the legal sense. As a legal subject (i.e. the bearer of rights and obligations), he cannot be a legal object at the same time. Jurisprudence and legal doctrine have extended the concept of sales law to all marketable goods, so that electricity and heat are considered to be “other items” in the case of legal purchases under (1) BGB.
How the corpse is to be classified under property law is controversial: the prevailing opinion basically assumes a property of the body, but this is controversial with regard to personal rights . In any case, the heirs do not acquire ownership of the corpse because the corpse does not belong to the property of the deceased (see above). Here the prevailing opinion assumes that the next of kin are given a quasi-material right to care for the dead. The artificial parts contained in the corpse regain their property. Since the corpse does not belong to anyone (the relatives have the right to care for the dead, but do not receive any property), these things become ownerless after separation from the corpse . A special case is the legal classification of corpses that are intended to serve scientific purposes due to a decree of the deceased or because the right to privacy has expired. Property can be acquired in them.
Whether the corpse is a thing can ultimately be left open, because it is withdrawn from legal transactions, because the body of the deceased cannot be part of the inheritance by way of universal succession ( BGB) , since it only affects the property . The dispute about the property of a corpse that is not used for scientific purposes has no practical relevance.
In 1990 , the TierVerbG inserted BGB, according to which animals are not things , but they are legally to be treated like things . This means that, for example, a dog easily by the rules on the contract of sale purchase and according to the property law rules assign them can.
The purpose of the regulation is to at least mentally distinguish animals as fellow creatures from things. According to an existing opinion in the literature, it is a “sensitive declamation without real legal content”. After all, it has effects in the case of compensation to be paid : The debtor cannot simply claim a reduction in the value of an animal injured by him through previous prolonged use, as in the case of an item damaged by him; also medical expenses that exceed the market value of the animal can, he will be charged ( para. 2 sentence 2 BGB). The finder's fee ( BGB) also differs: The increased rate of 5% instead of 3% for the first € 500 material value does not apply to animals.
Classification in the BGB
Kind of a thing
In civil law, the type of thing is judged according to the following criteria: movable and immovable, defensible, indefensible, consumable, non-consumable and divisible, indivisible.
- Immovable property ( real estate ) is land and land rights . They are also known as real estate .
- Movable objects (chattels) are derived from the old legal concept of Fahrnis and can be brought from one place to another.
- Justifiable items within the meaning of potatoes , grain , money , securities or sugar ( commodities ). BGB are all movable items that do not depend on individualization and that are usually determined in legal transactions according to number, size and weight. Examples of this are
- Irreplaceable things are all things that are individually determined as such. This includes, for example, land and apartments, but also a tailored item of clothing or an individually adapted car.
- Divisible items are items that can be broken down into parts of the same type without depreciation . For example, if a large vacant lot can be divided into two smaller plots without the added value of the two individual plots being lower, then the plot is a divisible property. Justifiable items are always divisible items, insofar as a division is actually possible (e.g. money). The concept of divisibility has meaning for the dissolution of community .
- According to consumption (e.g. butter, heating oil and lubricating oil) or for sale (e.g. shares or money). BGB, consumable items are movable items which, based on an objective view of their intended purpose, are intended for
Functional units of a thing
There can be connections between several things that are of different quality. The property law differs here between essential components , simple ingredients , appearance components and accessories :
- Essential components of movable property, BGB
- An essential part of a thing is to be assumed if there is such a significant connection between the two parts of the thing that separating them would lead to individual parts being damaged or rendered unusable. An example of an essential component is the painting of a wooden slat. The opposite example is the mattress of a bed. The distinction is important because essential components cannot be disposed of (the lacquer of the wood cannot be sold, only the wooden slat as a whole) and one cannot obtain any special real rights to the object.
- Essential component of immovable property, German Civil Code
- Essential components of a property are all things firmly connected to it, e.g. B. the building of a property. The items inserted to create a building are also essential components of the building and thus also of the property.
- Simple components
- Simple components are not essential components; H. are the components that do not fall under §§ 93, 94 BGB. Examples of this are the tires of a car, but also the engine of a car. This can be removed without destroying the matter.
- Sham components according to BGB are those parts of a thing that only serve a temporary purpose. This is particularly the case if a separation is intended later.
- This includes, for example, scaffolding that was attached to a facade in order to carry out work there.
- Accessories according to BGB
- The accessories include movable items that are intended to serve the economic purpose of the main item and are not part of the main item. For commercial and agricultural inventory there are further regulations in BGB.
These things are also called individual things in order to distinguish them from the factual aggregates , which consist of several independent things.
Uses of a thing
Civil law differentiates between advantages (advantages of use) and so-called fruitsBGB. The law differentiates between material and legal fruits.
- Use benefits
- The benefits of use are based on the success of a thing or a right that is favorable for the user. It is not necessary that a considerable profit is achieved through the use. An example of a usage benefit is the use of someone else's bike or someone else's watch. An opposite example would be the proceeds of the sale of the bike, as this proceeds from the exploitation stems of the matter.
- A description of the legal term "fruits" can be found in BGB. The legislature differentiates here between material and legal fruits . Here are tangible fruits of the yield, which is obtained from the matter under normal use. Example: animal products such as milk, eggs. Counterexample: the meat of the animal itself (utilization). But the yield that arises from a legal relationship is also called material fruits ( (3) BGB). This is the case, for example, when renting a rental car. Legal fruits are the income that a right grants according to its purpose. Legal fruits are, for example, the material fruits that the tenant of an orchard acquires on the basis of his lease right.
Matters of public law
In order to ensure the public function of things that serve the common good , the law of public things aims to partially “remove” things from civil property law, which is geared towards private benefit. The expression is misleading because the law of public things does not have special things, but a special legal assignment of the things to the owner. In particular, it also regulates the use of the property in the interest of the common good ( common use ) by the general public or specially authorized persons ( special use ).
Different use of the term
The technical term used in ZPO also includes rights - which as such are immaterial. What is meant in this provision is therefore the generic term for things and rights, the object . The same applies to the technical term in (2) BGB.
“Animals are not things; they are protected by special laws. The regulations applicable to things are only to be applied to animals insofar as no deviating regulations exist ”( ABGB ).
Physical things are things that can be perceived with the senses, even if technical aids (e.g. measuring tools) are required to make them perceptible.
Immaterial things are all imperceptible things. These include B. Claims or rights.
Movable things - immovable things
Items that can be moved from one place to another without damaging their substance are movable items (out of date: Fahrnis ); other things are immobile . Objects that are actually movable, but are considered immovable in the legal sense, are those that represent an accessory to an immovable object ( ABGB).
For the classification of things according to Austrian law, see property law (Austria) .
Since April 1, 2003,ZGB has : Animals are not things .
- Property law (France)
- Property law (Liechtenstein)
- Property law (Austria)
- Property law (Switzerland)
- Property law (England and Wales)
- Gaius, Institutiones Gai , 2, 13, 14
- Freiherr Fritz von Schwind, Römisches Recht: I. Geschichte, Rechtsgang, System des Privatrechtes , 1950, p. 195
- Otto Palandt / Jürgen Ellenberger , BGB Commentary , 73rd edition, 2014, overview before Section 90, marginal no. 1
- Otto Palandt / Jürgen Ellenberger, BGB Commentary , 73rd edition, 2014, overview before Section 90, marginal no. 2
- BGH MDR 1977, 1002
- Dieter Leipold, BGB I: Introduction and general part , 2008, p. 492
- Otto Palandt / Walter Weidenkaff, BGB Commentary , 73rd edition, 2014, § 433 Rn. 8 and § 453 marginal no. 6th
- Munich Commentary on the BGB, § 90 Rn. 30 mwN
- Otto Palandt / Jürgen Ellenberger, BGB Commentary , 73rd edition, 2014, overview before Section 90 marginal no. 11
- RG, judgment of September 25, 1930, RGZSt. 64, 313, 316
- Palandt / Ellenberger , 72nd edition, 2013, § 90a Rn. 1.
- BGH, judgment of October 8, 1955, Az .: IV ZR 116/55
- BGH DB 1966, 738, 739