Disposal prohibition
A restraining order (in case of transfer of a right and prohibition of sale called) prohibits the person entitled to his right have . A distinction is made between legal and legal prohibitions of disposal, furthermore among the legal the relative and absolute prohibitions of disposal.
Whether legislation under which of disposal bans noticed that the claimant does not have is is controversial. According to one opinion, such regulations are absolute legal prohibitions of disposal, according to the contrary opinion, however, the authorized person is not prohibited from disposing, but is already impossible by law from the outset ( restriction of disposal ).
Legal prohibitions on disposal
Section 137 of the German Civil Code (BGB ) states that prohibitions on disposal agreed in a contract do not affect the effectiveness of a disposition that has been made, but may lead to claims for damages.
- Example: V is the owner of a painting and agrees with D that he will not sell the painting. Nevertheless, V sells the painting to K.
- Although V and D had agreed that V should not own the painting, K became the owner. D can only stick to V and demand compensation.
Nevertheless, according to Section 399 of the German Civil Code (BGB), it is possible to agree a legal prohibition of disposal when assigning a claim. Here, contrary to the general rules , the pactum de non cedendo has real effect, so if it is violated , the assignment is ineffective.
Statutory absolute prohibitions on disposal
Statutory prohibitions of disposal are prohibition laws within the meaning of § 134 BGB. A disposition made anyway is therefore fundamentally ineffective because the disposition transaction is void . The BGB only draws this strict consequence for the absolute prohibitions of disposal, which aim not only to protect certain groups of people, but also the general public.
Statutory absolute prohibitions on disposal are contained in Section 1365 Paragraph 1 Sentence 2, Section 1369 , Section 1643 and Section 1812 BGB. A bona fide acquisition of ownership is ruled out because the operative's actually holder of the right and the good faith principle is not protected the right of disposal.
- Example: V owns a washing machine and is married to D. Without D's consent, V sells the washing machine to K.
- Although V is the owner of the washing machine, i.e. is the authorized person, K cannot acquire ownership of the washing machine, as the washing machine is an item that serves the household according to Section 1369 of the German Civil Code and D has not consented. The purpose of the regulation is to protect the material substance of family coexistence. K can, however, procure ownership of the washing machine for a fourth person, provided that the prerequisites for a good faith purchase are met and such does not fail in accordance with Section 935 BGB.
Whether § 1424 BGB represents an absolute or relative prohibition of disposal is controversial. The norm is in the title about community of property and therefore only applies if the community of property has been expressly agreed in a marriage contract . Thus, § 1424 BGB also represents a kind of legal transaction prohibition. Assuming that § 1424 BGB would be a relative disposal prohibition, a comparison with the parallel provisions for the community of gains would lead to a strange result. The consequence would be that in the community of property with less entitlement (the spouses are only joint owners), more traffic protection would be achieved, because assuming a relative prohibition of disposal would be possible in good faith ( Section 135 (2) BGB). Correctly, it must be assumed that there is an absolute prohibition of disposal, because otherwise the paradoxical situation would also arise that the transaction in rem is effective and the obligatory transaction is not ( Section 1424 (1) sentence 1 half 2 BGB). In this respect the acquired property would not kondiktionsfest and could to § 812 para. 1, sentence 1, 1st Alt. BGB are reclaimed.
Statutory relative prohibitions on disposal
For prohibitions of disposal which only aim to protect certain persons (relative prohibitions of disposal), the BGB does not simply provide for ineffectiveness, but regulates the legal consequences separately in Section 135 BGB. The order is therefore not general, but only ineffective against the protected group of people. In addition, the provisions on acquisition in good faith by the unauthorized person are declared to be applicable accordingly.
The BGB only contains a relative statutory prohibition of disposal in Section 473 BGB. The practical significance of the relative statutory prohibition of disposal therefore stems more from the fact that § 136 BGB refers to the relative statutory prohibitions on sale in court. This includes, for example, temporary injunctions , seizures and forfeiture until the judgment becomes final ( Section 73e StGB).
