Property law (Switzerland)
The property law is in Switzerland , part of the civil law and governs the legal relationship of people to things . It is regulated in the fourth part (Art. 641–977) of the Civil Code.
Property rights are absolute rights, which means that they can - unlike relative rights, which only have an effect between certain legal subjects - can be asserted against everyone.
Principles
The Swiss property law is based on five principles: The publicity , the specialty, the numerus clausus of real rights (so-called type coercion.), The Akzessionsprinzip and causality.
Principle of publicity
Since real rights can be asserted against anyone, they must also be recognizable for everyone. Publicity is ensured with various legal institutions. In the case of movable property, for example, possession is the medium of publicity, since it is linked to the presumption of ownership. In the case of land , the land register has the corresponding function. The change in the legal situation in rem on a movable property therefore requires a transfer of ownership, whereas an entry in the land register for real estate.
Specialty principle
According to the specialty principle - also known as the principle of certainty - real rights can only exist in a very specific thing. Unlike the law of obligations, property law has no rights to generic matters. This means that only individualized items can be used. This is of course a principle not only of property law, but of all disposition transactions . For the transfer of a right in rem, this means that it must be precisely determined, or at least clearly determinable, to which right in rem a transfer relates.
Type constraint
The law provides an exhaustive list of possible property rights. The legal subjects are not only bound to the typification of property rights, but also to the content of the legislature. Along with the principle of publicity, the type requirement ensures clarity for third parties. This legal certainty is necessary because the rights in rem are absolutely effective.
These are:
- property
- limited rights in rem
- Easement
-
Lien
- Driving deposit
- Lien on claims and other rights
- Mortgage
Possession is not itself a right, but merely describes the actual rule over a thing, thus an externally perceptible fact.
Accession principle
According to the principle of accession, the ownership of land also extends to all associated objects (e.g. buildings, plants and springs), according to the Latin saying superficies solo cedit (the superstructure follows the ground). For Swiss law, the accession principle is expressly anchored in Art. 667, Paragraph 2 of the Civil Code. The right extends in particular to electrical, gas, IT and water lines on the property.
Causality principle
Unlike in Germany, for example, property law disposals in Switzerland are dependent on a legal reason (the causa) (i.e. causal). The principle of causality is only stipulated by law for land, but the principle also applies to movable property due to longstanding case law and practically unanimous doctrine.
literature
- Wolfgang Wiegand , in Heinrich Honsell , Nedim Peter Vogt , Thomas Geiser (eds.): Basler Commentary - Civil Code II . 3. Edition. Helbing Lichtenhahn Verlag, Basel 2007, ISBN 978-3-7190-2527-4 .
- Heinz Rey : The basics of property law and property . 3rd, added and revised. Edition. Stämpfli Verlag, Bern 2007, ISBN 978-3-7255-5861-2 .
- Jörg Schmid : Property law . 3rd, erg., Verb. and updated edition. Schulthess, Zurich 2009, ISBN 978-3-7272-0840-9 .
