CHAPTER IV The Law of Things (Law of Personal and Real Property)

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CHAPTER IV The Law of Things (Law of Personal and Real Property)

SECTION 1 - GENERAL REMARKS

342. The third Book of the Civil Code deals with the law of real and personal property. This part of the Code must therefore in the first instance be read in conjunction with that part of the first Book of the Code which deals with ' things ', seeing that only these can be the object of property and other absolute* rights. Sections 90ff. BGB form therefore a necessary supplement of the third book of the Code; see Chapter 11 section 124ff. above.

343. The third Book deals with absolute rights in respect of things, not with relative rights. Contracts and delicts are therefore outside the scope -of this book. The special rules relating to property which originate in the relation of husband and wife and parent and child and in succession are also not dealt with here. Contracts and delicts are treated in the second Book, domestic relations in the fourth and succession in the fifth Book of the Code.

344. More than any other Book of the Code the third shows peculiarities distinguishing German law sharply from other legal systems-not only from the English but also from the Roman and cognate systems. The following general features of this part of German law deserve special mention.

(a) The principle of the protection of good faith: absolute rights (including ownership) in respect of things are extinguished under certain circumstances if the objects are transferred to a person who is in ignorance of the existence of such rights. The transferee acquires in these cases full and unencumbered property.

(b) The principle of publicity: great care is taken to ensure that absolute rights in respect of things are as often as possible clearly ascertainable by the public at large, in order that cases in which the transferee must and can rely on the principle of good faith (see (a) above) may be reduced to the least possible minimum.

(c) The principle of speciality: contrary to English law which recognises absolute rights in respect of a totality of things, e.g. in respect of the entire property of a company, German law recognises the existence of such rights only in respect of defined things. ' Floating charges ' are therefore unknown in German law.

EXAMPLE: A can grant to B a mortgage in respect of the houses X, Y and Z, but not ' on all my real property '.

(d) The principle of distinguishing between movable and immovable property. While Roman law treated movable and immovable property well nigh alike, Germanic law made a sharp distinction between the two types of property. The Civil Code is based on the Germanic rule but not inconsiderable concessions have been made to the Roman principle. The consequence is that the third Book is not divided into a section dealing with the law of immovable and another dealing with movable property, but that several of its sections deal with both kinds of property, while others deal with only one of them. The following summary will deal first with the most important topics in respect of which the Code does not distinguish between movable and immovable property, i.e. possession and the nature and protection of property. The remainder will be devoted to a summary first of the law relating to movable and then of the law relating to immovable property.

345. The third Book of the Civil Code deals exclusively with the substantive law relating to property. The rules on the procedure at the land register office are, however, of such outstanding significance for the operation of the German system of immovable property, that they will be included in the present summary.

SECTION II - POSSESSION

346. The German law relating to possession is peculiar and complicated, notwithstanding the fact that the definition of possession as 'actual physical power over a thing' (section 854 BGB) corresponds to that adopted by English law and other legal systems. Peculiarity and complexity are largely due to the fact that this definition does not do full justice to the actual legal position laid down in the Code. In German law a man need not have possession, although he has actual power. On the other hand another person may have possession, although he has no actual power. Finally, several persons at the same time may have possession in regard to the same thing, without being jointly in possession.

347. According to section 855 BGB a person who exercises actual power over a thing for another in the latter's household or business or in a similar relation by virtue of which he has to follow the directions of the other concerning the thing, is a mere ' possessory servant' (Besitzdiener) and as such does not have possession. Only the master is possessor. Similarly a person who wields actual power only temporarily and in place of another person is not considered as having possession.

EXAMPLES: A bank messenger does not have possession of the gold bullion which he carries from a branch to the main office. He is a mere Besitzdiener. A guest in a hotel does not ...

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