Actio de in rem verso

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The actio de in rem verso ( usage, version lawsuit ) was a Swiss Code of Obligations adjektizische suit of Roman law . It served to make use of the pater familias and dominus of a victim of violence for enrichment from legal transactions which he received through the actions of the victim of violence within the framework of the patria potestas . The claim could last beyond common law in Germany until the introduction of the BGB (January 1, 1900).

history

Roman law

The liability basis comprised the property of the victim of violence left for independent management ( dumtaxat de peculio ) and extended to that which got from the business into the property of the defendant ( vel si quid in rem Numerii Negidii inde versum est ). The extension meant that enrichments were to be surrendered even if the victim of violence had no manageable assets.

There was enrichment if the acquisition had been used on the dominus' assets, regardless of whether it was presented as a profit or a saving of expenses. The prerequisite that the victim of violence had to use the acquisition of things on the existing assets in order to get into the application of the actio de in rem verso represented a debt limitation. In this sense, an enrichment existed if the slave with borrowed money Paying the landlord's debts, buying grain for the manorial household or paying for a funeral that concerned the dominus . It was a special case of the right of representation .

The following text sequence of the late Roman classic Ulpian can be read in the digests :

et regulariter dicimus totiens de in rem verso esse actionem, quibus casibus procurator mandati vel qui negotia gessit negotiorum gestorum haberet actionem quotiensque aliquid consumpsit servus, ut aut meliorem rem dominus habuerit aut non deteriorem.
(Rough translation: "And let's say in principle that the claim for use of an item is basically given if an agent or other agent would have the claim for agency, and whenever the slave has spent something to the master ( Owner) to improve his property or prevent its deterioration ".):

Justinian I expanded the actio de in rem verso to include enrichments through acts of "non-violent" people (non-slaves) who acted in the interests of the enriched.

Common law and Prussian land law

A: Claims V exist in both K and D; B: V only has claims against K - his direct contractual partner

The common law , which had partially developed from Roman law and was in Germany until 1900, took up the generalized scheme. The public version action was always possible when people were doing business for others. A claim already existed if a pecuniary advantage had somehow become attributable to someone else's property.

Sections 262 ff. I 13 of the Prussian general land law also contained similar regulations :

The one, from whose property something has been used for the benefit of another, is entitled to either return it in nature or to demand compensation for the value.

Governing Law

The consequence was that you not only had to expect to be exposed to claims from your contractual partner if you had received something on the basis of an ineffective contract , but also found yourself exposed to third-party claims (see drawing A). It was therefore irrelevant to what extent there were contractual relationships with the third party. An enrichment without a legal basis was sufficient. The insolvency risk of his contractual partner could be overcome, since it was possible to indemnify the last recipient.

These far-reaching consequences of the claim meant that the legislature of the German Civil Code did not take over the version action. So if Mr. V sells an item to Ms. K. and sells it on to a third party, Mr. D., then Mr. V. can only demand compensation from his direct contractual partner Ms. K. if the contract was ineffective. If this is not able to pay, Mr. V. cannot prosecute Mr. D. (see drawing B).

Only in § 822 BGB is there a surrender obligation of third parties under strict conditions. In solving cases of enrichment , the legislative rejection of the version action still plays a role today as an argument of historical interpretation .

Individual evidence

  1. ^ Heinrich Honsell : Roman law. 5th edition. Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 36.
  2. ^ A b c Herbert Hausmaninger , Walter Selb : Roman private law. Böhlau, Vienna 1981, ISBN 3-205-07171-9 , p. 323.
  3. ↑ Ulp. : D. 15.3 .; Ulp. lib. 29 ad Ed.
  4. ^ Philipp Charwath: Roman law. A reader . P. 430.
  5. ↑ "If the recipient turns what has been obtained free of charge to a third party, then, insofar as the recipient's obligation to surrender the enrichment is excluded as a result, the third party is obliged to surrender it, as if he had received the donation from the obligee without any legal reason."

literature

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