Inconsistent statute of limitations
The unimaginable statute of limitations is a legal institution that originates from canon law and develops its effect in various legal areas of applicable law. If the prerequisites for the unimaginable statute of limitations are met, it is rebuttably presumed that a certain right arose in an earlier time, even if this can no longer be proven. For example, by means of the unimaginable statute of limitations, it can be assumed that a path leading over private property was dedicated as a public path and may be used by the general public, even if the dedication itself is no longer verifiable. Here, the unimaginable statute of limitations does not replace the dedication, but only releases you from having to prove the dedication act. However, it must be proven that the preconditions for the immutable statute of limitations (see below) are met.
Colloquially one could say: If there are no corresponding documents, and no one can remember that it was ever regulated differently, then everything will probably be correct.
The legal institution of the unimaginable statute of limitations is not regulated in the German Civil Code (BGB). As a rule, it applies to areas of law that are not regulated in federal law, in particular in road and right of way , in water law and in neighboring law .
According to the undisputed opinion of the Federal Court of Justice and the literature, the statute of limitations is inconceivable if “the condition claimed as a right was possessed as a right for a period of forty years and [...] no memories of another condition since another forty years before Human memory passed ” .
The unimaginable statute of limitations therefore regularly refers to conditions as created by common law . Since this mostly relates to real rights in general or property in particular, Art. 181 EGBGB must be observed.
It should be noted that the term "limitation period" has a different meaning here than in the BGB. The reason for this is that in common law another term of limitation was used, which was based on the fact that the passage of time can invalidate as well as justify rights. In the BGB, the term of limitation was only adopted in the sense of restricting rights. The "unprecedented statute of limitations" as a term from the time before the German Civil Code, however, has a legal character: By virtue of an unpredictable statute of limitations, the ownership of a right can be assumed to exist, even if no other acquisition can be established.
The BGB also recognizes the acquisition of rights through the passage of time in the form of possession .
literature
- Bernhard Windscheid : Textbook of Pandect Law. Reprint 9th edition, Scientia-Verlag, Aalen 1963.
- Annette Guckelberger : The statute of limitations in public law. Tübingen 2004, at the same time habilitation paper, DHV Speyer 2003, chap. MI: statute of limitations and immortal limitation . ISBN 3-16-148374-X .
Individual evidence
- ↑ so Peters in Staudinger , BGB 2004 , preliminary remarks to §§ 194 ff. BGB.
- ↑ cf. the facts on which the decision of the BVerfG of April 15, 2009, Az. 1 BvR 3478/08 is based.
- ↑ BGHZ 16, 234–241 (234 and 238).
