Processing (law)

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In property law, processing is understood to mean the production or transformation of previously legally independent items into essential components of a new, uniform main item . In addition, data protection law uses the term processing of personal data .


Property law also had to deal with the legal issue of previously legally independent items that permanently lose their independence through processing and for which the processor is not the owner of the processed materials. There is thus a conflict between the owner or owners of the raw materials and the manufacturer. This constellation occurs quite often in everyday life, for example in production , through which raw , auxiliary and operating materials are combined (and at the same time also processed) to form a new product . In the division of labor, multi-level production, the conflict of interests between the raw material supplier and the producer or between the producer of the lower and the higher production level is expressed. What needs to be clarified in these cases is the legal fate of the various property rights.


Roman law already dealt with processing ( specificatio ). If a material ( materia ) was processed so that a new thing ( novam speciem facere ) was created, the question arose as to whether the new thing should belong to the owner of the material or to the processor. In everyday Roman practice, this topic came up, for example, when pressing wine or olive oil from grapes or olives. The philosophy of law posed the question of whether the essence of a thing lies in its external form ( forma ) or in the substance ( materia ). While a new thing arose for the Proculians , which their manufacturer was allowed to appropriate ( naturalis ratio ), with the Sabinians the new thing belonged to the substance owner. Justinian I decided the dispute based on whether the matter could be returned to its original state or not. Only metals were traceable (by melting them down), while wood, textiles and liquids were subject to the Proculian view. When painting or writing on materials (parchment, paper, wooden panel), the owner of these materials was also considered to be the owner of the entire work with inscription. Justinian I later followed Gaius' opinion and granted ownership of the painting to the painter.

Processing from the Middle High German process , "transforming through work ", which first appeared in connection with gold processing in 1524 in the Freiburg guild regulations . Johann Christoph Adelung was evidently the first author to use the legal term in a German dictionary in 1774. The General Prussian Land Law (APL) of June 1794 stipulated: "If someone has processed foreign materials in such a way that they have lost their previous shape and assumed a new shape, the resulting new thing remains with the processor" (I 11, § 304 APL). However, if the processing of third-party items takes place without the knowledge and will of their owner, the new item becomes the property of the owner of the processed items (I 11, § 299 APL). The APL thus approached the Proculian view. The Civil Code (CC), which has been in force in France since March 1807 , in Art. 570 CC ascribes ownership of the new item to the substance owner and expressly emphasizes that it does not depend on whether it can be returned to its original form. The Austrian General Civil Code , which came into force in January 1812, assumes that the materials used can be traced back. In contrast to the international regulations mentioned, the BGB, which came into force in January 1900, has just one paragraph and makes the question of ownership dependent on the value of the processing.

Legal issues

The processing leads to an original acquisition of property . It is a real act , so that the processor does not have to be legally competent . The processing takes place through the production or transformation of one or more substances into a new movable object ( § 950 Abs. 1 BGB ). The basic idea of ​​this regulation is the recognition of the valuable work during the processing as a property acquisition reason. However, the legal requirements for processing are low. According to Section 950 (1) sentence 2 BGB, writing , drawing , painting , printing or engraving is sufficient to process a surface . The joining of components is even more considered processing . A higher processing level is required, which is not yet reached with a repair .

A new thing is created through processing if the manufactured thing is given a new name, a significant change in form or character or a completely different or more extensive economic function . If processing is also to be seen in the connection or intermingling , the processing regulations take precedence, while the connection with a piece of land or the same property ( § 946 BGB) takes precedence over processing.

Section 950 (1) of the German Civil Code (BGB) resolves the impending conflict of ownership by ascribing ownership of the new item to the processor , unless, in exceptional cases, the value of the processing is significantly lower than the value of the material. The value of the processing is the difference between the value of the new item and the value of all processed materials plus personnel costs . It can be assumed that a significantly lower processing value in relation to the value of the processed materials is to be assumed if the material value to the processing value is roughly 100 to 60. With the acquisition of ownership of the new item, the existing rights to the substance expire (Section 950 (2) BGB), which applies , for example, to retention of title or security property . According to § 951 BGB, the manufacturer must pay the previous owners compensation for unjust enrichment ( § 812 BGB).


In Switzerland , Art. 726 ZGB makes ownership of the new thing dependent on the labor value of the processing. If the work is more valuable than the material, the new thing belongs to the processor, otherwise to the owner of the material. In Austria , §§ 414 ff. ABGB is based on traceability and wants to return everyone's property. If, however, according to § 415 ABGB it is not possible to restore the previous status, the item belongs to the owners as co-ownership .

In France , according to Art. 552 CC, the owner can carry out any processing ( spécifications ) that he deems appropriate. However, he must reimburse third-party materials used during processing to their owners (Art. 554 CC). If someone uses material that does not belong to him to make a new thing out of it, the newly created thing remains with the substance owner (Art. 570 CC). It does not matter whether the material can regain its former shape or not. If materials are processed by different owners, this results in joint ownership (Art. 572 CC). The processing thus unites the labor with at least one thing, while connection and mixing unite two things.

In Italy, Art. 940 Codice civile (CC) grants ownership of the processing ( specificazione ) to the processor if the material value is not significantly higher. In England , when processing ( specification ), the processor ( workman ) always becomes the owner of the new item.

See also


  • Heinrich Honsell, Roman Law , 3rd edition, Berlin a. a. 1994, § 21 VII, p. 59 f.
  • Gero Dolezalek, plea for restriction of § 950 BGB , in: AcP 195 (1995), 392 ff.

Individual evidence

  1. Manfred Harder / Georg Thielmann , in: De iustitia et iure , Festschrift Ulrich von Lüptow, 1980, pp. 187 ff.
  2. ^ So the Proculian School of Law following the philosophy of Aristotle
  3. so the Sabinian school of law following the philosophical teaching of the Stoa
  4. ^ Herbert Hausmaninger / Walter Selb, Römisches Privatrecht , 2001, p. 163
  5. ^ Justinian, Digesten , 41, 1, 24 ff.
  6. ^ Herbert Hausmaninger / Walter Selb, Römisches Privatrecht , 2001, p. 163.
  7. Paulus, Digest, 6, 1, 23, 3.
  8. Gaius, Institutiones , 1.9 § 2 D XLI, 1.
  9. Gerhard Köbler , Etymological Legal Dictionary , 1995, p. 425
  10. ^ Johann Christoph Adelung, Grammatical-Critical Dictionary of High German Dialect , Volume 5, 1774, Sp. 1373
  11. General Land Law for the Prussian States , Volume 1, 1794, p. 222
  12. ^ Harm Peter Westermann / Karl-Heinz Gursky / Dieter Eickmann, Property Law , 8th edition, 2011, § 53 Rn. 1
  13. BGHZ 18, 226
  14. Jürgen F. Baur / Rolf Stürner, Property Law , 17th edition, 1999, § 53 Rn. 18th
  15. Otto Palandt / Peter Bassenge , BGB Commentary , 73rd edition, 2014, § 950 Rn. 1
  16. BGHZ 56, 88 , 90 f.
  17. ^ BGH, judgment of May 22, 1995, Az .: II ZR 260/94
  18. Denis Schlimpert, Integral and functional connections from matters in French and German law , 2015, p. 31
  19. Peter Schlechtriem , Restitution and Enrichment Compensation in Europe , Volume 2, 2001, p. 140