Authorization to dispose of

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The power of disposal is a legal institution regulated in Section 185 of the German Civil Code. It enables an authorized person ( owner , holder of a claim , etc.) to have an unauthorized third party make effective disposal of the item in their own name .

effect

In contrast to the representation , the authorized person does not act in someone else's name, but in his own name. The declarations of intent of the transaction are also not attributed to the entitled person, but lead to an agreement between the purchaser and the unauthorized party. However, this agreement is effective by virtue of the authorization. It is therefore not a purchase in good faith either.

Example : V transfers E's bike to K in his own name in accordance with Section 929 sentence 1 BGB. In principle, V, who is not the owner at all, can only procure property for K under the conditions of good faith acquisition of property from the unauthorized person (according to Section 932 ff . BGB). However, it is different if E has authorized V to transfer ownership: then ownership has passed to K in any case.

The authorization can be declared before ( consent , paragraph 1) or after ( approval , paragraph 2) of the ruling.

use cases

  • An important application of the authorization of disposal is the so-called extended retention of title , in which the dealer is authorized by the middleman to transfer ownership, but in return receives the purchase price claim assigned.
  • The authorization to collect , i.e. the authorization to collect a third-party claim in your own name, is also a form of authorization. For example, in the case of the extended reservation of title, the middleman again authorizes the dealer to collect the assigned purchase price claim in his own name so that the customer is not aware of the assignment.
  • A conceivable application is also that the owner of a stolen item (purchase in good faith is out of the question) approves the ineffective transfer of ownership of the thief to a third party in accordance with Section 185 (2) of the German Civil Code (BGB) and thus makes it effective, in accordance with Section 816 (1) BGB to be able to demand the purchase price from the thief.

Extensions

  • The expansion of that the wording only available transactions is mainly rejected § 185 BGB obligation shops (so-called. Budget commitment ).
  • To § 185 BGB also refers § 362 para. 2 BGB for fulfillment . The debtor can therefore pay to an authorized third party with discharging effect, although the third party is not the creditor of the claim. The fact that the BGB considered the reference to Section 185 BGB to be necessary is often understood as evidence that the law does not understand fulfillment as a disposition of the claim (otherwise Section 185 BGB would be directly applicable even without a reference).