Separation principle (civil law)

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Separation principle in civil law

The separation principle is a term used in jurisprudence in different European legal systems, including the German Civil Code .

It says that the obligation transaction and the disposition transaction do not form a unit, even if it is a single life process, but must be separated from each other. However, the BGB alone - compared to other legal systems - made the two parts of the business independent of one another in terms of their legal effectiveness and introduced the so-called abstraction principle .

Here is an example: If customer K purchases three rolls from master baker B, jurisprudence looks at this uniform issue under different aspects:

  • First, a sales contract is concluded between B and K. In this , B undertakes to transfer and hand over three rolls to K, Section 433 (1) BGB . In return, K is obliged to pay the purchase price to B and to accept the rolls, Section 433 (2) BGB. This is called the obligation under the law of obligations.
  • In fulfillment of the obligations that B and K entered into with the purchase contract, they now individually assign each of the rolls and each banknote or coin. This fulfillment transaction is also referred to as a (in rem) disposal transaction, because here a right in rem (namely ownership) is transferred directly.

This means that the sales contract, which represents the obligation transaction with a legal basis (the so-called cause ), and the transfer of ownership are two different processes. Therefore, according to German law, it is also easily possible to transfer ownership long after the purchase contract has been concluded or to undertake the transfer on condition that the purchase price has been paid in full ( retention of title ). The separation principle is the basis of the abstraction principle. The ineffectiveness of the causal transaction does not affect the effectiveness of the disposition.

The purpose of the separation principle (and the abstraction principle based on it) is primarily to protect traffic. For example, a buyer does not have to worry about whether the seller has encumbered the item in question with other binding transactions (e.g. further sales contract to other customers of the seller) as soon as he has also become the owner of the item.

literature

Harry Westermann (term): Property law , a textbook, continued by Harm Peter Westermann , Karl-Heinz Gursky , Dieter Eickmann, 8th edition, CF Müller, Heidelberg 2011, ISBN = 978-3-8114-7810-7, § 4 .

Web links

Individual evidence

  1. ↑ Hans Hermann Seiler : Past and present in civil law , Heymanns, Cologne 2005, ISBN = 978-3-452-25387-3, p. 256 f.
  2. ↑ Othmar Jauernig in JuS 1994, p. 721 ff.