Type constraint
In German jurisprudence, type constraint is understood to mean that a person applying the law in property law is only allowed to choose from a catalog of forms of action and arrangements prescribed by the legislator and not agree or accept any new ones ( numerus clausus ).
Property law
While in principle any contract may be agreed in the law of obligations (so-called private autonomy ) and the contracting parties do not have to choose from predefined contract types, in property law no new legal form can be created because all legal forms are stipulated by law. This does not affect the freedom to enter into a contract, the “whether” of the legal justification, because the parties are free to appoint rights in rem. Only the freedom of content design, the “how” of the law to be established is affected.
In detail, the following are subject to type constraints:
- Full rights (including co-authorizations): ownership , fractional ownership , and regulated outside property law: joint ownership ,
- Usage rights: usufruct as comprehensive usage authorization, in addition partial usage rights: limited personal easement ,
- Exploitation rights to land: mortgage , land charge , annuity charge and the real load ,
- Furthermore: leasehold , easement , lien , right of first refusal and reservation .
There are legal variants within individual types. The mortgage allows the types of book and letter mortgage ( Section 1116 BGB ), as well as total, maximum and security mortgages . An easement can encumber a property in such a way that the property may only be used in individual relationships or that certain actions may not be carried out on the property or that the exercise of a right is excluded ( § 1018 BGB). Limited personal easements can be linked to rights of residence ( § 1090 ) BGB.
Corporate law
In company law, you can only choose between certain types of company ( legal form requirement ), even though there are design options and mixed forms such as GmbH and Co. KG .
Individual evidence
- ^ Fritz Baur / Rolf Stürner , Property Law , 2009, § 1 Rn. 7; Hans Josef Wieling , Property Law , Berlin 2007, I, § 1 II 4.
- ↑ Hans Hermann Seiler : History and the present in civil law. Fundamentals of Property Law , Heymanns, Cologne 2005, ISBN = 978-3-452-25387-3, p. 251 ff.
