Traditio ex iusta causa

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Traditio ex iusta causa (" transfer for a valid reason "), shortened to Traditio , is a property law term for the transfer of property in ancient Roman law .

Legal development

The Roman legal system recognized three types of legal property acquisition . On the one hand, there were the two formal transactions of ritual manipulation and assignment in court , also referred to as in iure cessio . The form-free physical delivery of a thing was characterized as traditio (ex iusta causa) . In a nutshell: the in iure cessio was an “abstract disposition transaction that was detached from the legal basis” and the traditio was “transfer of ownership through mere handover based on a valid title”. The cause for the transfer of rights could be the obligation from the purchase contract or donation , but also the mere granting of ownership from a lease agreement such as the loan , even the mere actual control of property through custody serving the purpose .

The handover was not based on a real agreement within the meaning of today's German law . If, on the other hand, the causal transaction contained a lack of will , for example because the selling owner was a minor or insane, he could not enter into an effective agreement as furious within the meaning of the Twelve Tables Act , so that the faulty causa had an impact on the subsequent transfer of the goods and the receipt of the price in return and the legal transaction was ineffective overall. There was also no cure if the seller was of legal age or was in good health at the time of becoming aware of the legal deficiency.

The traditio ex iusta causa led to the immediate acquisition of property in the case of res nec mancipi , i.e. things that did not require a formal act of transfer. At res mancipi however, only so-called could bonita innovative property be justified if the transfer of ownership requirements had not been carried out or defective. In all cases it was necessary that the seller was also the owner. Defects in title in title were even to the detriment of the bona fide purchaser, because the derivative acquisition from the unauthorized person never led to a change of ownership in the sense of the tradition . The authorized third party could, in historical order, first with the legis actio sacramento in rem , later with the vindicatio , demand surrender and enforce his claims in court.

From the elements shown, four qualities were ultimately developed, which are reflected in the different legal systems of continental Europe today: German law knows the abstract-material contract, Austria, on the other hand, the causal-material contract. France and Italy renounce the institute of the contract in rem and in Switzerland (but according to a minor opinion) the transfer is not dispensable, but the contract in rem.

Legal sources

To clarify that the tradi served in addition to the transfer of use of compulsory legal transaction or the granting of actual physical control of real transfer of rights, helps as a source, the textbook of Gaius from the 2nd century, taken in the Corpus Juris Civilis of Justinian .

“PER TRADITIONEM QUOQUE IURE NATURALI RES NOBIS ADQUIRITUR: NIHIL ENIM TAM CONVENIENS EST NATURALI AEQUITATI, QUAM VOLUNTATEM DOMINI, VOLENTIS REM SUAM IN ALIENUM TRANSFERRE, RATAM HABERI ...”

"We can also acquire property according to natural law through tradition: namely nothing corresponds to natural equity more than to assert the will of the owner who wants to transfer his property to another ..."

- Gai D. 41, 1, 9, 3.

Gaius enumerates the purchase contract and the donation elsewhere as an example of classic acquisitions. It makes it clear that in the context of traditio , acquisition by the unauthorized person was eliminated. In order to be able to transfer, the transferor of an item had to have ownership of it.

"ITAQUE SI TIBI VESTEM VEL AURUM VEL ARGENTUM TRADIDERO SIVE EX VENDITIONIS CAUSA SIVE EX DONATIONIS SIVE QUAVIS ALIA EX CAUSA, STATIM TUA FIT EA RES, SI MODO EGO EIUS DOMINUS SIM."

"If I give you a dress, gold or silver, be it because of a purchase, a gift or any other reason, the thing immediately becomes your property, if only I am its owner."

- Gai 2, 20.

Traditio is simply the actual handover of the thing, which brings about the acquisition of property. The prerequisite for this is that it takes place ex iusta causa , i.e. in fulfillment of a valid, mandatory legal transaction.

"NUMQUAM NUDA TRADITIO TRANSFERT DOMINUM, SED ITA, SI VENDITIO AUT ALIQUA IUSTA CAUSA PRAECESSERIT, PROPTER QUAM TRADITIO SEQUERETUR."

"Property is never transferred through mere handover, unless a sale or other reason for acquisition has preceded it, for which reason the handover took place."

- I. Paul. D. 41, 1, 31 pr.

Acquisition transactions are usually paid and therefore linked to a consideration . In Justinian law, otherwise controversial in Romance studies , the transfer of ownership was dependent on the payment of the purchase price. Justinian quotes a twelve-table sentence with this content:

“SED SI QUIDEM EX CAUSA DONATIONIS AUT DOTIS AUT QUALIBET ALIA EX CAUSA TRADANTUR, SINE DUBIO TRANSFERUNTUR: VENDITO VERO ET TRADITAE NON ALITER EMPTORI ADQUIRUNTUR, QUAM SI IS VENDITORI PRETIUM SOLVERIT VEL ALIOFUTECA CAUSA TRADANTUR, QUAM SI IS VENDITORI PRETIUM SOLVERIT VEL ALIOFUTEC CAUSA EI SATIS ETIAM LEGE DUODECIM TABULARUM; TAMEN RECTE DICITUR ET IURE GENTIUM, ID EST IURE NATURALI, ID EFFICI; SED SI IS QUI VENDIDIT FIDEM EMPTORIS SECUTUS FUERIT, DICENDUM EST STATIM REM EMPTORIS FIERI. ”

“When things are given as gifts or dowries, or for any other reason, property is no doubt transferred. On the other hand, the buyer only acquires sold and transferred items if he has paid the seller the purchase price or provided security, e.g. B. by a surety or a pledge. This already determines the Twelve Tables Law; but it is correctly said that it also applies according to ius gentium , i.e. H. according to natural law. If, however, the seller credits the buyer with the purchase price, it must be said that the property immediately becomes the property of the buyer. "

- Codex Iustinianus : I. 2, 1, 41.

aftermath

The common law knew mainly the tradi ex iusta causa . It established the principle of publicity, which made the necessity of a handover (“tradition”) necessary. At the same time, the principle of consensus developed in natural law , which was followed by the French and Italian legal areas. It is based on the thesis that property is something that is merely imagined and therefore transferable by mere consensus. The dispute between the principle of tradition and the principle of consensus dominated the discussion of the 18th century.

Although the traditio in Roman law was not itself a contract, but only served the transfer in fulfillment of the underlying mandatory legal transaction (contract), which of course could lead to reclaims via the condictio , Savigny developed on this basis in the 19th century the The principle of abstraction anchored in the German Civil Code ( BGB ) , which made the strict separation between the causal business under the law of obligations and the abstract business under property law and made them legally independent of each other. He managed this in such a way that, due to the principle of disclosure, he assumed the requirement of a handover, but turned it into a real contract. Thus the theory of the contract in rem was born.

As a consequence, this meant: If a sales contract is concluded and the object of purchase is then transferred, but it later turns out that the sales contract is void, this nullity under the law of obligations does not affect the disposal transaction. In the abstract, the disposition transaction stands next to the (pathological) sales contract. In this case, the performance condition serves the seller to achieve the return transfer of the object of purchase. Defects in title of the causa thus lead to the reversal of the right to enrichment, which is dogmatically very controversial among lawyers, due to performance on a non-fault or due to failure of purpose , because the underlying legal transaction was sine causa (see dogmatic dispute in the German legal system).

Even jurisdictions that have not taken up the abstraction principle, but the principle of causality , as the French Civil Code , the Swiss Civil Code or the Italian Civil Code can be ultimately traced back to Roman law. Technically, the reverse process is different (vindication instead of condition).

Special forms of traditio

literature

Web links

Remarks

  1. ↑ a b c d e Heinrich Honsell : Römisches Recht, 5th edition. Springer, Zurich 2001, pp. 58–61.
  2. ↑ a b Ulrich Manthe : History of Roman Law (= Beck's series. 2132). Beck, Munich 2000, pp. 24-25.
  3. ^ Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher), pp. 151–153.
  4. ↑ a b causal and abstraction principle in the transfer of ownership (today's diversity and its history).
  5. ^ Kunkel (author) in: Honsell, Mayer-Maly , Selb: Römisches Recht (Encyclopedia of Law and Political Science) , Springer-Verlag, 4th edition 1987, p. 160 ff. With additional references.