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In jurisprudence and tax law, alienation is understood to mean the transfer of ownership of things or the assignment of claims and other rights . The opposite is the purchase .


The word disposal comes from the Middle High German word “veriuzerunge” for “transfer into someone else's possession”. The word was already common in the late Middle Ages , because in a text by the city of Frankfurt from 1418 it is said that “we gonnen in dan soliche versatzunge, verphendunge or verusserunge”.


Alienation is the most comprehensive form of disposal , namely the transfer of property. So if the ownership is only passed to the tenant through renting , it is not a sale. The transfer of rights by law (e.g. inheritance ) or by administrative act (e.g. foreclosure auction , expropriation ) is also not considered a sale . Furthermore, according to prevailing opinion , the mere relinquishment of ownership does not constitute a sale, even if the Reichsgericht (RG) in November 1921 had regarded the relinquishment of ownership as a sale within the meaning of § 265 ZPO . Rather, one speaks of a sale only when the transfer takes place through a legal transaction , i.e. through a declaration of intent by the parties involved. Sales transactions, there is therefore the purchase contract , land contract , the inheritance purchase , the exchange or donation .

A sale has the consequence that the seller is no longer the owner and the buyer becomes the new owner of an item. This applies mutatis mutandis to the assignment of claims for the transferred creditor (assignor), the ownership is losing the claim against the new creditor (assignee).

Disposal in civil law

The Civil Code uses the term quite often and understands exception in rem disposal business in movable property according to § § 929 et seq. BGB and land and land rights according to § 873 BGB. The BGH also understands the sale to be solely the transaction in rem. He focuses very closely on the real agreement between the seller and the buyer. In this ruling of June 1994, the BGH sees the sale as a “release of the unrestricted power of disposal”. The mere commitment transaction, however, does not trigger a sale process.

The sale is mentioned in particular in the context of the statutory sale ban ( § 135 BGB) and the official sale ban ( § 136 BGB); The accessories of a movable object are usually also sold ( § 311c BGB), also in accordance with § 926 Paragraph 1 BGB for real estate. The legal principle “purchase does not break rent” ( § 566 BGB) also applies to the sale of leased land ( § 593b BGB). Encumbrances expire with the sale ( § 936 Paragraph 1 BGB), accessories and products of a property are no longer liable for the property when they are sold and removed ( § 1121 BGB), there is no liability for accessories and products when they are separated from the property within the framework a proper economy ( § 1122 BGB); the seller of a pledged item has the same rights as its owner ( § 1242 BGB).

Disposal in tax law

The tax law mentions the sale very often. In Section 16 of the Income Tax Act , the capital gains from the sale of an entire business enterprise or a part of it are added to the income from the business enterprise ; the same applies to agricultural holdings in accordance with § 14 Income Tax Act. According to Section 6b of the Income Tax Act (EStG), when certain assets are sold , the entrepreneur may set the capital gain as a reinvestment reserve to avoid taxation as a reserve .

Disposal in commercial and banking law

In § 23 HGB the sale of the company without the associated company is prohibited. The authorized signatory can be specifically authorized to sell and encumber real estate in accordance with Section 49 (2) of the German Commercial Code. Exceptionally, the term sale refers to both the obligation and the fulfillment transaction. If he concludes a property purchase agreement with a buyer, this special authorization must already exist for the obligation under the law of obligations.

In the banking transactions listed in Section 1 (1) and (1a) of the KWG , the transfer of ownership is also meant by sale.

See also


  • Gerhard Köbler: Legal dictionary . 12th edition Munich 2003, p. 487.
  • Werner Merle: The sale of the disputed object . JA 1983, 626.

Individual evidence

  1. ^ Jacob and Wilhelm Grimm , German Dictionary , 1862, Volume 25, Col. 88
  2. ^ Frankfurter Archiv, excerpts from the manuscripts of the municipal archive
  3. Carl Zimmerer, Banking Act: Systematic Introduction and Commentary , 1962, p. 100
  4. ^ RG, judgment of November 11, 1921 - Rep. III. 145/21 = RGZ 103, 166, 167
  5. BGH, judgment of June 16, 1994, Az .: I ZR 24/92 = BGHZ 126, 252, 259
  6. Carl Zimmerer, Banking Act: Systematic Introduction and Commentary , 1962, p. 100