Property law principle of certainty (Germany)

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The principle of certainty in property law requires that real rights can only exist in relation to a specific, individual legal object .

General

The principle of certainty under property law is one of the five principles in property law , alongside the principle of publicity and the principle of specialty . A disposition over things presupposes that the subject of the disposition is specifically determined or at least can be determined. It does not only apply in property law, but also in the case of the assignment of claims , the law must be described as sufficiently determined or determinable. Its function is to provide legal clarity.

For example, it is not possible to own 20% of the screws in a box. In this case it would have to be determined exactly which screws are involved. Although this does not seem practicable in everyday life, it is necessary for legal reasons. This principle also serves to publicize the rights in rem. These work absolutely, that is, towards everyone. It therefore simplifies legal relations when it is always clear to everyone who has real rights to a specific thing.

application

The principle of certainty excludes the transfer of property entities . If entities are to be transferred (for example, part of a stock ), the contract must regulate precisely which individual things are specifically meant. This includes the name or description of each individual thing. On the basis of the principle of separation, the transfer of ownership of an entity is possible. Therefore, a purchase agreement , rental agreement , lease agreement , loan agreement , even the mere handover, can only relate to a specific object . In the transfer of ownership has BGH in settled case-law requires that, "It is readily apparent due to external demarcation criteria for anyone who knows the party agreements, which individually certain things are suitable". In the case it was about the assignment of the marital household effects to the bankruptcy estate. This decision was followed by a dogmatic case report on the principle of certainty.

In particular, the principle of certainty plays a major role in the transfer of loan collateral . The specialty principle must be observed in all security contracts . According to this, the collateral to be ordered must be precisely identified (individualized) not only for the collateral provider and the collateral taker , but also objectively for third parties (possibly also the insolvency administrator ) and be distinguishable from other, non-liable similar items; simple external delimitation criteria must be chosen. Things must be designated in such a way that anyone familiar with the contract can easily distinguish them from others. The principle of certainty is fulfilled when the typical features of each security have been described in detail so that later identification is also possible for third parties without great effort and without doubt. If necessary, sketches and location information or other attachments must be attached to the security contracts. In addition to these questions of demarcation, the certainty also serves to protect other creditors .

Determination is regularly required when transferring ownership of material entities that change in the portfolio. There is a lack of certainty when circumstances outside of the contract have to be taken into account for clarification. It is not necessary that the collateral provider's property and the goods subject to retention of title are spatially separated from one another. Rather, it can be agreed that the expectant right to the collateral should pass to the bank. The principle of certainty is maintained if all objects in a room are transferred. However, if part of a larger amount is to be transferred in a room, a clear demarcation must be made from the part that has not been transferred. For this it is necessary that markings show which objects the transfer of ownership extends to.

The property law principle of certainty cannot be applied to claims without further ado, because the assignment of security is regulated in the law of obligations of the BGB and here the principle of certainty is unknown. The same problems as in the law of property obtained if not a requirement, but several ceded to be. According to the prevailing opinion , the simple determination of the assigned claims is then sufficient . The assignment of (existing or future) claims is effective if the assigned claim is clearly defined or at least can be determined in terms of subject matter and scope at the moment it arises. It is necessary and sufficient to be certain at the point in time when the security is created (claims, inventory). In the case of anticipated assignments (blanket and global assignment ), determinability must be available at the time of the declaration of assignment, so that there is nothing to prevent the assignment of future claims from being effective if the business documents provide unequivocal information about the legal fate of the assigned claims. It is not a question of the legal validity of the assignment, but of its provability. The assignment of future claims (e.g. as part of the global assignment) requires the determinability of these future claims, also and precisely because of the extended retention of title which collides with this .

Legal consequences

If it later turns out that a legal transaction does not meet the requirements of the principle of certainty, then indefinite property transactions do not produce any legal consequences. This also applies to the assignment of claims. If there is no specificity requirement for loan collateral, the corresponding collateral orders are void .

See also

Individual evidence

  1. ↑ Jürgen F. Baur / Rolf Stümer, Property Law , 1999, § 4 Rn. 17th
  2. ↑ a b Jens Thomas Füller, Independent Property Law? , 2006, p. 18.
  3. ↑ BGH, judgment of January 31, 1979, Az .: VIII ZR 93/78
  4. ↑ BGH WM 1992, 398.
  5. ↑ BGH NJW 1994, 133.
  6. ↑ BGH WM 1963, 504.
  7. ↑ BGH NJW 1958, 945.
  8. ↑ BGH WM 1958, 1024.
  9. ↑ BGH NJW 1996, 2654.
  10. ↑ BGH NJW 1984, 803.
  11. ^ BGH WM 1977, 218.
  12. ↑ BGH NJW 2000, 276.
  13. ↑ BGH NJW 1978, 358.
  14. ^ Harm Peter Westermann / Dieter Eickmann / Karl-Heinz Gursky, Property Law , 2011, p. 25.

literature

  • Tiedtke, "Definiteness of the objects to be transferred in the case of partial security transfer of material entities - New tendencies in the case law of the BGH", WiB 1995, p. 197.