Title (right)
As title (also legal title ; English title , French titre ) are in the Law called: on the one hand a prerequisite for enforcement or similar regulatory instruments , on the other award for special achievements , and thirdly certain residence permits for non-EU citizens in the European Union .
history
The word title comes from Roman law ( Latin titulus , "agreement, contract" or as a metaphor for "honor (name), fame" and "inscription or inscription"). The legitimate title ( Latin titulus iustus ) is the epitome of those facts which characterize the possession of things based on it as legitimate. Such facts were real contracts with subsequent handover . In Roman law, titles were mostly understood to be a contract with acquisition of ownership such as the purchase contract ( Latin titulus pro emptore ), donation ( Latin titutulus pro donato ), possession ( Latin titulus pro dote ), the payment of debts ( Latin titulus pro soluto ), and more the inheritance ( Latin titulus pro herede ), the legacy ( Latin titulus pro legato ) and abandonment of the thing by the previous owner ( Latin titulus pro derelicto ). The acquisition of property included a ground of possibility (the titulus ) and a ground of reality ( Latin modus acquirendi ). Late Roman law developed the titulus-modus theory of the transfer of ownership, according to which the contract contains the legal basis of transfer of ownership ( titulus ) and the modus the transfer of ownership.
In the late Middle Ages , two clergymen studied the word titulum and interpreted it for their own purposes. In 1594, the attacked Dominicans - monk Domingo de Soto , the Roman doctrine of the "titulus" for divine things on, 1614 who explained Jesuit Luis de Molina , the four legitimate legal title of slavery .
The legal title appeared for the first time in 1769 in the Constitutio Criminalis Theresiana . In 1783 the title was considered the legal ground for the acquisition of a right in rem and a pedant to the mode, a legal form of acquisition . For the General Prussian Land Law (PrALR) of June 1794, the title was the "legal reason by virtue of which an act or event has the force that the right [to a thing] can be acquired" (I 2, § 132 PrALR) . The title of a right to third-party property is the personal right from which a right to the property arises through the additional type of acquisition (I 2, § 133, 134 PrALR). The Roman mode was called the type of acquisition and was considered to be the act or event by which someone acquired a right to a thing (I 2, § 131 PrALR).
The titulus modus doctrine of Roman law can be found expressly in the French Code civil (CC) of March 1804 or in the Austrian ABGB of January 1812. From 1873, real law and title were used as synonyms in Germany . Johann Ludwig Klüber established in 1817 that the church property belongs to the religion that acquired it through a legal title. The German Civil Code of January 1900 implemented the titulus-modus doctrine in the separation principle and separated the obligation transaction ( the “title”) from the disposition transaction (the “mode”).
Legal title
The word title can also be the abbreviation of legal titles, in particular enforcement titles . In general, a distinction is made between non-enforceable and enforceable titles , depending on whether they can be used for foreclosure or not:
- Non-enforceable titles
- Final judgments in civil law , unless they contain an enforcement clause ( Section 724 ZPO ). For the time being, no foreclosure can be carried out from them. The law provides for cases in which an enforcement clause must be waived, namely in the case of the enforcement notice ( Section 796 ZPO), arrest and the temporary injunction ( Section 929 (1), Section 936 ZPO).
- Other: If the enforcement is pursued on the basis of a non-enforceable title because an enforcement clause has been incorrectly issued, the debtor is entitled to the legal remedy of § 732 ZPO, which leads to the enforcement clause being revoked .
- Enforceable title
- Final judgments in civil law that contain an enforcement clause ( § 724 ZPO). The most important enforcement title is the final judgment ( § 704 ZPO). If the defendant does not perform the actions required of him in the judgment ( § 887 ZPO), the plaintiff can be authorized to have the action carried out at the debtor's expense, or to have it carried out from the judgment into the defendant's assets . It can also be enforced from interim orders , from a cost-fixing decision ( Section 795a ZPO in conjunction with Section 105 ZPO) and from the arbitration awards declared enforceable by public-law arbitration courts, provided that the decision on enforceability is legally binding or declared provisionally enforceable ( Section 168 VwGO ).
- Enforcement title in administrative proceedings under public law , such as tax notices or other notices and administrative acts by authorities as well as official seizures . The latter take place under public law by means of a garnishment order issued by the enforcement authority . Authorities name their notices themselves (official seal ) and can enforce them immediately (after a period of time ). For example, pays the taxpayer notified in the tax assessment tax to maturity not that can tax authority by administrative by § 249 1 para. AO execute independently.
- Settlements in civil law ( Section 794 (1) No. 1 ZPO) eliminate the legal dispute or the parties' uncertainty about a legal relationship by giving in to each other .
Enforceable titles must contain the enforcement clause with an official seal, the creditor and debtor ( Section 750 (1) ZPO) as well as the signature of the issuing authority ( court ) and thus count as a legal order . In order to be able to carry out the foreclosure, at least one provisionally enforceable judgment, the issuance of an enforcement clause by the trial court and its service on the debtor are required.
Enforcement law also knows clauses supplementing the title ( Section 726 (1) ZPO) as well as clauses describing the title ( Section 727 ff. ZPO). In the case of the former, enforcement is dependent on the occurrence of a fact to be proven by the obligee; the latter enables enforcement against debtors other than those named in the title (such as legal successors ).
Title as an award
For special contributions to the Federal Republic of Germany can President after the law on titles, orders and medals of 1,957 titles (OrdenG) July 26 medals and decorations lend. The designation of the titles and the conditions for their award must be determined by law ( Section 2, Paragraph 1, Sentence 2, Order Act). Since such a federal law does not yet exist, there are no federal titles , only medals and decorations. The federal states also have the right to award titles, medals and decorations ( Section 1 (2) OrdenG). In most federal states, non-academic titles are awarded, as well as state medals of merit, for example in Bavaria , Berlin and Rhineland-Palatinate .
Neither academic degrees such as doctoral degrees or non-academic titles nor official and professional titles are titles within the meaning of the Ordensgesetz ( Article 2, Paragraph 2 of the Ordinance Act). Since August 1919 (Art. 109 Para. 3 Clause 2 of the Weimar Constitution ) it has no longer been possible to confer nobility titles in Germany . All families of the German nobility have since lost their sovereignty.
The unauthorized use of domestic or foreign titles or certain professional titles is a criminal abuse of title according to Section 132a of the Criminal Code .
Title as a legal structure
The word title also means the structure of laws or other legal norms . For example, the extensive BGB is divided into books , sections , titles, subtitles and chapters that separate the individual subject areas from one another.
residence permit
A title in the legal sense can also relate to a European residence permit for non-EU citizens in the European Union . Foreigners require accordance with § 4 para. 1 of the Residence Act for the entry and stay in the federal territory of a residence permit , unless provided otherwise by EU law or by ordinance determined or other right of residence.
Others
The legal term debt is, on the one hand, a synonym for enforcement title (e.g. Section 124 (2 ) HGB ) and, on the other hand, is used in securities law for bonds of all types and participation certificates (e.g. Section 2 (1) No. 3 WpHG ).
International
Where relics of Roman law still exist today (for example in civil law in Austria , Switzerland , France , Italy , Spain ), the title is still known in the earlier Roman sense. In Austria and Switzerland the title is an obligation transaction , the mode the disposition transaction . For example, Section 380 of the Austrian Civil Code stipulates that no property can be acquired without a title and without a legal form of acquisition . The purchase contract is therefore a "title deal" (Section 1062 ABGB) in which the buyer and seller assume corresponding obligations . The transfer of the object of purchase and the money form the mode. The mode as a legal form of acquisition is handover (§§ 426 ff. ABGB) or entry in the land register . In Austria every document is called a legal title. For example, § 799 ABGB requires that the person acquiring an inheritance must prove the legal title ( inheritance contract , last will or law) to the court . In the narrower sense, as in Germany, the execution title is a legal title.
Although Switzerland knows the types of acquisition in Art. 714 ff. ZGB as in Roman law, it avoids the terms "title" or "mode". In France, the legal title ( French titre ) is a legally recognized or at least not forbidden reason by which a person is entitled to purchase an object . The legal titles are based in part on direct legal provisions such as inheritance (Art. 718 ff. CC), donation (Art. 893 ff. CC), contract (Art. 1104 ff. CC) or statute of limitations (Art. 2219 ff. CC) . The legal titles of acquisition are general ( French titres universels ) or special legal titles ( French titres particuliers ), depending on whether the entire property or just a single object is acquired. In the Anglo-Saxon area the legal title ( English legal title ) represents above all a property right ( English legal title to property ), whereby the 'title' means “that which protects the right”. The owner has a real entitlement erga omnes ( English best title ) with extensive legal power ( English absolute interest ).
Web links
Individual evidence
- ^ Franz Bernhöft, The Property Title in Roman Law , 1875, p. 12
- ↑ Domingo de Soto, Justitia et Jure libri X , 1594, p. 286 / r. 56
- ↑ Luis de Molina De iustitia et iure , Volume 1, 1614, Disputatio 33, Col. 157-165
- ^ Constitutio Criminalis Theresiana , 1769, p. 31
- ^ Julius Friedrich Höpfner , Theoretical-Practical Commentary on the Heineccian Institutions , 1783, § 392
- ↑ Franz Hofmann, The doctrine of the titulus and modus adquirendi and of the iusta causa traditionis , 1873, p. 42
- ^ Franz Förster, Prussian Private Law , Part I, 1892, p. 117
- ^ Johann Ludwig Klüber, Public Law of the German Confederation and the Federal States , 1817, p. 736
- ^ Alpmann Brockhaus, Fachlexikon Recht , 2005, p. 1306
- ↑ Carl Creifelds , Legal Dictionary , 16th Edition, 2000, p. 1320
- ^ Ludwig Frey, Textbook of French Civil Law , Volume 1, 1840, p. 219 f.
