Disposal transaction
A disposition transaction is a legal transaction that has a disposition as its content. It is a legal term .
A disposition is the direct effect on a right or a legal relationship , through transfer , encumbrance , cancellation or change of content:
- A transfer represents, for example, the transfer of ownership of a thing or an assignment of claims .
- A load can e.g. B. the ordering of a lien , a mortgage or a land charge.
- A right to an object is canceled, e.g. B. if a decree is agreed .
- A content change is z. B. when converting a land charge into a mortgage ( § 1198 BGB).
The rights and legal relationships that are affected are referred to as the object of disposal .
You only name the disposer whose right is transferred. Therefore, a pure can justification of a law (such as the property in an appropriation of ownerless thing ( § 958 BGB)) not available business in the true sense be.
If the disposition transaction is a unilateral legal transaction, it is a structuring transaction .
Differentiation from a real legal transaction
The disposal transaction is often a legal transaction in rem . This means that the legal transaction is aimed at a disposition of a right to a thing and it therefore has an effect in rem, which in turn means that it acts directly on all persons .
However, there are also contractual disposition transactions. Here the legal transaction is directed towards a disposition of a claim , such as:
- offsetting ( § 387 ff. BGB)
- the decree ( § 397 BGB)
- the assignment ( § 398 ff. BGB)
- the releasing assumption of debt ( § 414 ff. BGB)
Causality of disposition transactions
Disposal transactions can be carried out on the basis of causal obligation transactions, pure causal agreements or without a legal basis:
- German civil law distinguishes between the justification of claims and rights through the obligation (= causal transaction [from Latin causa , the reason ' ]) - e.g. B. through sales contract - and the execution of the obligation transaction through the transaction - z. B. through transfer of ownership. This separation describes the separation principle . Furthermore, the two legal transactions are not only to be considered separately, but they are also independent of one another, principle of abstraction. This means that one legal transaction is also effective without the other. Therefore the disposition business belongs to the abstract business.
- Causal agreements establish the legal basis of disposal transactions that cannot be sued for performance, e.g. B. the donation according to § 516 BGB Abs. 1 BGB (in contrast to the formal donation promise according to § 518 Abs. 1 BGB).
- Dispositions without legal grounds are in particular dereliction , i.e. the relinquishment of property ( § 928 , § 959 BGB), as well as the will.
The Austrian civil law known as the German the principle of separation, so different just as consistently between commitment and disposal business, but little in terms of the ratio of the two businesses to each other, the principle of causality , according to which a business depends available in its effects by binding transactions.
An example to clarify
Hans goes to the bakery and buys a loaf of bread. He pays the required 2 euros for the bread with a 2 euro coin.
Here there is a binding transaction and two disposition transactions.
Undertaking : Hans and the baker sign a purchase agreement for a loaf of bread. The purchase contract is the reason why Hans and the baker still close the two disposition transactions with which they fulfill their mutual obligations (hence also fulfillment business ).
1. Disposal transaction : The baker transfers ownership of the bread to Hans.
2. Disposal transaction : Hans transfers ownership of his 2 euro coin to the baker.
Note: If Hans had paid the purchase price not with a 2 euro coin but with two coins of 1 euro each, there would have been another transaction: Coins are movable objects, and according to § 929 Para. 1 sentence 1 BGB a disposition transaction is required for the transfer of ownership.
In German law, keep in mind that if the baker had given Hans the loaf of bread, but had not paid Hans at all or only inadequately, Hans would still have the obligation to pay the money, but not to return the loaf of bread. Because through the transfer of ownership of the bread, Hans became the owner and will remain so, since, as already mentioned above, each legal transaction is considered individually and works independently of the others.
Instead, the baker has the option of setting a deadline for payment to Hans and, if the deadline has expired, to withdraw from the contract ( § 323 , § 346 BGB ) and / or (see § 325 BGB) to claim damages ( § 280 Paragraph 1 and 3 , § 281 BGB). In this way, the baker u. a. bring about an obligation for Hans to transfer the bread back to him, that is, to carry out another transaction.
A right to enrichment under § 812 BGB does not exist because the purchase contract remains the legal basis for the transfer even if Hans has not properly fulfilled. Section 812 of the German Civil Code (BGB) only applies if the obligatory transaction is ineffective, for example because one of the contracting parties contests it due to a brief impairment of consciousness or an error . However, this claim is disadvantageous for the baker compared to the reversal claim from § 323 , § 346 BGB because of the possibility of invoking depletion ( § 818 Paragraph 3 BGB).
Individual evidence
- ^ Mathias Habersack : Property law . 7th edition. 2012, ISBN 978-3-8114-9874-7 , § 1 number 13 .
