Heraldic law

from Wikipedia, the free encyclopedia

The coat of arms law regulates the authority to use private coats of arms . In Germany it is a customary law of a purely private law nature recognized by case law and not explicitly regulated by law. The German Reichsgericht (RG) and later the Federal Court of Justice (BGH) have recognized the equal treatment of the legal protection of the coat of arms with the protection of the name.

The use of official coats of arms is regulated in public law .

history

In accordance with customary law, family coats of arms were passed on from the father to all legitimate children, but the daughters only carried the father's coat of arms until they were married. From then on they carried the husband’s coat of arms, if he had one, or they did not have one. Married women could have the coat of arms of their father and that of their husband together, either in a split or squared shield or in two shields facing each other (marriage or alliance arms ). In the case of illegitimate birth, the right to use the paternal coat of arms existed only in the case of legitimation through subsequent marriage ( legitimatio per matrimonium subsequens ) or the official declaration of marriage .

In earlier times there was a binding right to wear a coat of arms. For example, the “ General Land Law for the Prussian States ” from 1794 still protected noble family coats of arms. It stipulated: "Nobody may use a noble family coat of arms who does not belong to the family to which this coat of arms is either expressly attached or which has carried it from ancient times." However, since 1918 the state has not seen any need for this to subject civil coats of arms to a legal regulation.

Since the coat of arms comes from the military sector, initially only aristocrats (and their ministerials ) carried a coat of arms. Usually it was bestowed on them when they were ennobled by the emperor or a prince ; Families of the primeval nobility often accepted it themselves. Later, clerics ( bishops ), institutions (e.g. cathedral chapters, monasteries, cities, universities) and even citizens and peasants accepted or were given coats of arms. As early as the 13th century, bourgeois coats of arms and in the 14th century also coats of arms of free farmers can be identified. From the beginning, coats of arms were adopted and used from free law. It was only from the middle of the 15th century until 1711 that an attempt was made in the electoral capitulations of German emperors to prevent free acceptance and to make the power to carry coats of arms dependent on sovereign award - without the emperors having been particularly successful in this.

Germany

Protection of the coat of arms

The protection of the family coat of arms is analogous to that of the name via Section 12 of the German Civil Code (BGB) . This paragraph stipulates: “If the right to use a name is contested by another person or if the interests of the person entitled are violated by someone else using the same name without authorization, the person entitled can demand that the other person remove the impairment. If further impairments are to be feared, he can sue for an omission. ”It follows that the person entitled can sue for omission even if an existing family coat of arms is used without authorization. This is now firmly established legal belief.

Incidentally, today's German statutory law leaves the coat of arms - with the exception of the protection of the same name - unregulated. The family law and the law of inheritance of the BGB also contain no regulations on the authorization to acquire or to keep and pass on a family coat of arms, nor do the trademark law . Nevertheless, the right of the coat of arms is not inferior to the law of the law; it is "right" i. S. d. Art. 20 para. 3 GG and "legal norm" i. S. d. Art. 2 Introductory Act to the Civil Code (EGBGB).

Adoption of a coat of arms

Since the end of the monarchy in 1918 , there has been no coat of arms conferred or confirmed in Germany . The acceptance of the coat of arms is not subject to any authorization. Every legally competent person has the right to accept a coat of arms, provided that no third party rights are affected. The acceptance of a coat of arms takes place through (informal) foundation, i.e. the unilateral declaration that a certain coat of arms designed by a heraldist or himself should be your own and that of the family. No official or judicial participation is required.

It should be noted that the new coat of arms is not like any existing one (principle of exclusivity). If someone can assert older rights to a coat of arms, the later founder has to give way. The accepted coat of arms must be properly emblazoned and it must be published by entering it in a coat of arms - for example of the Herold Association , the Heraldic Association “Zum Kleeblatt” - or in another suitable manner. The publication by the "Herold" takes place in the book series Deutsche Wappenrolle (so far 73 volumes): Anyone who wants to use a foreign coat of arms must obtain the owner's permission.

The founder can determine the group of those who should be authorized to use the coat of arms in a coats of arms statute. If he does not make a special provision, the offspring in the male line are entitled to lead according to conventional custom . Women carry - according to their choice - the coat of arms of their father or husband. However, a donor of the coat of arms is free to provide for the continuation of the coat of arms in the female line.

Austria

Coat of arms law in the monarchy

In Austria , until the fall of the monarchy in 1918, the right to use aristocratic coats of arms was protected and regulated by the patents of March 1, 1631, January 19, 1765, November 28, 1826 and July 26, 1833. The hereditary coat of arms was a nobility attribute that could be granted without being granted nobility . The last civil coat of arms was issued on May 28, 1818. The last coat of arms for a non-aristocrat was confirmed in 1907. As a result, the issuance of new bourgeois coats of arms was stopped on the grounds that the coat of arms was an attribute of the nobility. Noble owners of medals were allowed to adorn their family coats of arms with the medal decoration, but only personally, not on the coats of arms of the family members. The use of coats of arms by persons not capable of coats of arms was punished as presumptuousness with fines.

The use of coats of arms had also been approved earlier with an express ban on nobility. In the case of ennoblement, the acceptance of the coat of arms of a foreign family could be approved. In the awarding of the coat of arms, special signs of grace could be awarded to the coat of arms. The knight had the right to wear two helmets and the baron had the right to wear three helmets . The rank crowns (barons and counts) were placed directly on the shield below the helmets. A heart shield was only allowed from the baron on. Shield holders (in the case of the simple nobility) and coats of arms (foreign currency) were tied to the approval of the Ministry of the Interior.

Republic of Austria

With the Nobility Repeal Act of April 3, 1919, the nobility, its external honorary privileges and the associated titles and dignities of Austrian citizens were repealed in Austria ( § 1 ). "The use of these nobility designations, titles and dignities is prohibited." ( § 2 ) With the enforcement order [...] of April 18, 1919, on the abolition of the nobility and certain titles and dignities , the old rights were abolished with its § 2 .

With the lost "right to use traditional coats of arms and noble surnames" (line 3) as well as the "right to use family coats of arms, especially also the wrongly called 'bourgeois' coats of arms" (line 5), it was not only the ban on leadership the old family coat of arms, but they no longer enjoy any kind of protection. In the opinion of the Tyrolean Provincial Archives, the resulting practice is milder, which means "the door is wide open to the erroneous or deliberate abuse of family coats of arms, which are as it were unearthed and discovered as such".

The coats of arms of that time still have evidential value under current civil law, where they are shown, for example, in accordance with Section 854 of the Austrian Civil Code (ABGB) on existing boundary signs in the case of property divisions and on the boundary walls of neighboring properties.

Judicature

In 1994 who had Supreme Court a civil law process with German foreign element according to § 13 IPR to decide -law, with whom he in analogy to § 43 ABGB a closed loophole has:

The German plaintiff in the proceedings acquired nine tenths of a piece of land in Austria with the hotel on it in 1977 and the remaining portion in 1984. During this time he had the family coat of arms, which was given to an ancestor in 1631, affixed to one floor of the building and also used his coat of arms in advertising for the hotel. In March 1985 he sold the property “as it is currently and is there with all legal and factual accessories, insofar as this is firmly connected with the property” to a Liechtenstein company. After a subsequent bankruptcy was opened for his assets , the trustee sold this property to the defendant in the civil proceedings at issue "with all the rights, powers and obligations associated with this property, as well as all legal and actual accessories", which "has since - with no bad reputation." afflicted - hotel “led. With the hotel, the new owner also took over a larger motif carpet with the German family coat of arms of the previous owner and placed it in the hotel foyer. The defendant used the motif of the coat of arms not only with this carpet in the foyer, but also next to the establishment name and the address on the letterhead of his business stationery, in advertising brochures and on postcards.

Both lower courts rejected the petition for action: The first court essentially proceeded from the consideration “that there is no 'abstract' protection of the coat of arms” and also that there is no “only non-material impairment of the plaintiff's rights [...] because the defendant is related to the plaintiff could not be awakened by the use of the coat of arms ”. The appellate court, however, essentially dismissed the action with the argument "that the defendant was not aware that it was the plaintiff's family coat of arms and that they were legitimately using the coat of arms." The Supreme Court ruled with 6 Ob 649/93 in March 1994, the appeal did not take place and saw this appeal by the plaintiff, which had been approved by the second instance because of the lack of case law on the issue of the protection of the coat of arms in Austria, as not justified.

The following two relevant legal statements result from the decision of the Supreme Court:

  • "For the protection of a German family coat of arms against impairments, the provision of § 43 ABGB is to be applied analogously due to the existence of an undoubtedly unwanted loophole."
  • "Analogous to the naming law (due to the lack of an express conflict of law rule for the protection of a family coat of arms) for the coat of arms law as a personal right according to § 13 para 1 IPRG due to the personal status of the plaintiff, a German national , both the application of German law and that in this legal system to affirm the right to use a family coat of arms derived from the protection of the coat of arms. In analogous ( § 7 ABGB) application of § 13 Paragraph 2 IPRG, however, the protection of the German coat of arms law is to be assessed according to Austrian substantive law, because the alleged acts of interference with this law took place in Austria. "

Switzerland

The Swiss coat of arms law offers no special protection for family coats of arms. However, they are subject to the usual provisions of copyright law , which must be taken into account when the family coat of arms is used. In addition, the coat of arms is one of the personal rights protected by Art. 28 of the Civil Code and must therefore be given the same protection that the law grants the name. In accordance with the principle of equal treatment, everyone is entitled to wear a coat of arms. A family crest can be acquired either through ancestry or marriage. Incidentally, everyone is free to adopt a newly formed coat of arms.

literature

  • Edward Beck: Basic questions of the heraldic theory and the heraldic law. An attempt and a contribution to the expansion of coat of arms science (= publications of the Palatinate Society for the Promotion of Science in Speyer. 20, ISSN  0480-2357 ). Publishing house of the Palatinate Society for the Advancement of Science, Speyer 1931, (at the same time: Heidelberg, University, dissertation, 1928).
  • Walter Freier: Heraldry and Heraldry Law. Practical introduction to heraldry and the law of coat of arms (= internship for genealogists . 7, ZDB -ID 540129-x ). 2nd Edition. Degener, Leipzig 1934.
  • Rudolf von Granichstaedten-Czerva: Old Austrian nobility and coat of arms law. In: Adler. Journal of Genealogy and Heraldry. Vol. 1, Issue 4, 1947, ISSN  0001-8260 , pp. 49-58.
  • Felix Hauptmann : The right of arms. Historical and dogmatic representation of the legal principles applicable in the coat of arms. A contribution to German private law. Hauptmann, Bonn 1896, ( (full text with images) Philosophical Institute Academy of Sciences of the Czech Republic).
  • Bruno Bernhard Heim : Coat of Arms Customs and Law in the Church. Walter, Olten 1947.
  • Reinhard Heydenreuter : Coat of arms law in Bavaria. In: Research on Bavarian History. Festschrift for Wilhelm Volkert on his 65th birthday. Lang, Frankfurt am Main et al. 1993, ISBN 3-631-45090-7 , pp. 365-374.
  • Jakob Otto Kehrli : The private law protection of the family coat of arms in Switzerland since the civil code came into force. In: Journal of the Bern Lawyers' Association. Vol. 60, No. 12, 1924, ISSN  0044-2127 , pp. 578-597.
  • Otto Klee: The coat of arms as a legal object is a legal symbol. In: The German Herald. Vol. 38, 1907, ZDB -ID 504810-2 , pp. 21-27.
  • Dieter Müller-Bruns: Wappenrecht: Use of municipal coats of arms outside the official area. In: Kleeblatt. Journal of Heraldry and Allied Sciences. No. 3, 1994, ISSN  2191-7965 , pp. 24-27.
  • Dieter Müller-Bruns: Wappenrecht - The principle of exclusivity. In: Kleeblatt. Journal of Heraldry and Allied Sciences. No. 2, 2000, p. 17 ff.
  • Dieter Müller-Bruns: Arms law - protection of the arms. In: Kleeblatt. Journal of Heraldry and Allied Sciences. No. 4, 2005, p. 13 ff.
  • Dieter Müller-Bruns: About the basics of the so-called coat of arms law. In: Kleeblatt. Journal of Heraldry and Allied Sciences. No. 1, 2011, pp. 59-77.
  • Dieter Müller-Bruns: Considerations on the main features of the so-called coat of arms law. In: Lorenz Friedrich Beck, Regina Rousavy, Bernhard Jähnig (eds.): Coat of arms today - future of heraldry? A historical auxiliary science between art and science. Contributions from the joint conference of the HEROLD's section on historical auxiliary sciences and the HEROLD's committee for the German coat of arms on April 24, 2009 in the archive of the Max Planck Society in Berlin-Dahlem (= Herold Studies. Vol. 9). Starke, Limburg ad Lahn 2014, ISBN 978-3-7980-0264-7 , pp. 33-46.
  • Helmut Töteberg: Basic features of the applicable coat of arms law in Lower Saxony. In: Heraldic Association "Zum Kleeblatt" from 1888 to Hanover e. V. (Ed.): 1888–1963. 75 years of the Heraldic Association “Zum Kleeblatt” from 1888 zu Hannover eV Festschrift on December 4, 1963 (= Heraldische Mitteilungen. NF 1, ZDB -ID 517769-8 ). Self-published by the editor, Hanover 1963.

Judgments in Germany

  • Bassenge, Peter, Beck'sche KurzComments, Palandt, Bürgerliches Gesetzbuch, 57th edition, Munich 1998.
  • Säcker, Franz Jürgen (editor), Munich Commentary on the German Civil Code, Volume 1, General Part, 3rd Edition, Munich 1993.
  • Roth, Herbert (editor), J. von Staudinger's commentary on the civil code with introductory law and ancillary laws, § 12, 13th edition, Berlin 1995.
  • Decisions of the Imperial Court in Civil Matters, Volume 2, Leipzig 1880, Judgment No. 39.
  • Decisions of the Imperial Court in Civil Matters, Volume 5, Leipzig 1882, Judgment No. 45.
  • Decisions of the Imperial Court in Civil Matters, Volume 18, Leipzig 1887, Judgment No. 4.
  • Decisions of the Reich Court in Civil Matters, New Series, Volume 21 (Volume 71) Leipzig 1909, Judgment No. 67.
  • Decisions of the Reichsgericht in Civil Matters, New Series, Volume 24 (Volume 74) Leipzig 1911, Judgment No. 86.
  • Decisions of the Reich Court in Civil Matters, New Series, Volume 50 (Volume 100) Leipzig / Berlin 1921, Judgment No. 54.
  • Decisions of the Reich Court in Civil Matters, Volume 103, Berlin 1922, Judgment No. 60.
  • Decisions of the Reich Court in Civil Matters, Volume 113, Berlin 1926, Judgment No. 22.
  • Decisions of the Federal Court of Justice in Civil Matters, Volume 1, Detmold 1951, Judgment No. 62.
  • Decisions of the Federal Court of Justice in Civil Matters, Volume 37, Cologne 1962, Judgment No. 30.
  • Decisions of the Federal Constitutional Court, Volume 17, Tübingen 1965, Judgment No. 15.
  • Schleswig-Holstein advertisements, Justice Ministerial Gazette for Schleswig-Holstein for 1972, 219th published year, judgment 6 U 68/71, April 14, 1972, Higher Regional Court Schleswig-Holstein.
  • Federal Court of Justice, judgment, May 19, 1976 in Commercial Legal Protection and Copyright, Journal of the German Association for Commercial Legal Protection and Copyright, Volume 78, Weinheim 1976, Issue 11. BGH Az. IZR 81/75 v. May 19, 1976
  • Decisions of the Federal Court of Justice in Civil Matters, Volume 119, Cologne / Berlin 1993, judgment no. 23 Federal Court of Justice Az. IZR 235/99 v. March 28, 2002
  • BGH, judgment of March 28, 2002, Az .: I ZR 235/99; BGHZ 119, 237
  • OLG Hamburg, OLGE 3, 89; Staudinger / Weick / Habermann, BGB (1995), § 12 marginal number 222
  • Decision of the Federal Court of December 4, 1919, BGE 45 II 623 (Art. 28.29 ZGB. Legal protection of the family coat of arms - relationship between coat of arms and name protection - objection due to the use of the coat of arms as a business symbol).

Web links

Individual evidence

  1. ↑ § 16 II 9 ALR, plus the criminal law of the Empire § 360 No. 8 StGB in the version at that time.
  2. ↑ Soergel-Siebert, BGB, 11th edition 1978, on § 12, note C III 7.
  3. ↑ see also Palandt, BGB, 65th edition 2006, § 12 Rn. 38.
  4. ↑ a b See the Tyrolean State Archives Department: Family Coat of Arms . In: Website tirol.gv.at. Office of the Tyrolean Provincial Government (publisher), undated, accessed on August 10, 2019.
  5. ↑ a b Decision of the Supreme Court of March 10, 1994, OGH 6 Ob 649/93: Legal sentences and decision text on 6 Ob 649/93 in the legal information system of the federal government (RIS).
  6. ↑ Jakob Otto Kehrli , The private law protection of the family coat of arms in Switzerland since the entry into force of the civil code, in: ZBJV 60 (1924), p. 579.
  7. ↑ op.cit., P. 581 ff.