CHAPTER IV The Law of Things (Law of Personal and Real Property)
|E. J. Cohn
|Amt des Autoren
SECTION 1 - GENERAL REMARKS
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.
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.
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.
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
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.
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 have possession of the fork with which he eats his lunch, as he wields actual power only for a short period and in place of the owner.
The Besitzdiener has, however, according to section 860 the right of self-help against attacks (see para. 351 below).
Section 868 BGB reads as follows:
If a person possesses a thing as usufructuary, pledgee, lessee, depositary or in a similar relationship in consequence of which he is temporarily entitled or bound to possess the thing on behalf of another, then such other person is also possessor.
In cases of this kind there are therefore two types or grades of possession in respect of the same thing. The possession of the person wielding actual power is called direct possession (unmittelbarer Besitz). That of the other person is called indirect possession (mittelbarer Besitz). It is possible that there are several indirect possessions in respect of the same thing, section 871 BGB.
EXAMPLE: A, the owner of a house, has let a flat to B. B has sublet the flat to C. C is direct possessor. A and B are both indirect possessors.
The difference between the unmittelbarer Besitzer and the Besitzdiener lies in the fact that the former is not subject to the directions of another person, while the latter is subject to such instructions. A valuable test to ascertain in the individual case, whether a person is Besitzer or Besitzdiener, is whether he is personally independent of another person. The purpose of the institution of indirect possession is to enable both, the direct and the indirect possessor, to use the possessory remedies.
In addition to section 868 there are other possibilities of two persons having possession of the same object at the same time. Two persons may possess one thing in common, e.g. two persons have taken jointly a safe in a bank, or several persons may possess defined parts of a thing, e.g. several subtenants who have each been let individual rooms in a flat, see sections 866f.
Possession is acquired in either of the following ways:
(a) By acquiring actual power either unilaterally (as e.g. the thief, the finder) or by succession from the former possessor. The requirements for assuming that a person has actual power are somewhat more exacting in the case of unilateral acquisition.
EXAMPLES: A person finding a box in the road must actually take it with him. A person obtaining a house by succession need only take the key, if the house is unoccupied.
Actual power cannot be acquired without the intent to acquire it. But this intent may be of a general character: it need not refer to the specific thing in question.
EXAMPLES: A sleeper into whose hand a stick is placed does not thereby acquire possession. The owner of a house acquires possession of a letter placed in the letter box.
(b) By mere consent, if the transferee is already wielding actual power, section 854 (2) BGB.
EXAMPLE: The master gives to the servant the uniform which the latter is wearing. The servant ceases to be a Besitzdiener and becomes a Besitzer.
(c) Indirect possession may be acquired in any of the following three ways:
(aa) By the formation of a relationship such as is required by section 868 for the creation of indirect possession, see para. 348 above.
EXAMPLE: A, the owner and possessor of a house, sells and transfers the house to B, but arranges that he remains in the house as a tenant. B acquires indirect possession.
(bb) By the transfer of such a relationship.
EXAMPLE: In the preceding example B sells the house to C. C becomes indirect possessor in B's place, while A remains the direct possessor.
(cc) By the assignment of the indirect possessor's claim against the direct possessor for the return of the thing, section 870 BGB.
EXAMPLE: A has deposited with B, the owner of a warehouse, 30 grand pianos. He assigns to C, his claim against B for the delivery of one clearly defined grand piano. C thereby becomes indirect possessor of this piano.
(dd) By operation of law. The Civil Code knows only one such case of automatic acquisition of possession by operation of law, i.e., that of the heir who by the fact that succession takes place immediately becomes possessor of the estate, even though he does not know of the succession and takes no steps whatever to acquire actual power, section 857 BGB. A trustee in bankruptcy does not automatically acquire possession of the estate by his appointment.
Military Government Law No. 52 which is in force in all the three Western Zones of Occupation provides in Art. I (1) that property belonging to certain specified persons, such as the German Reich, the NSDAP, absent owners and persons specified by Military Government by inclusion in lists is to be subject to seizure of possession. According to Art. I (2) the same applies to property which has been the subject of dispossession. Military Government acquires indirect possession in cases of this type by the issue of its order vesting possession in Military Government. The same would appear to be true, if an order provides that Military...
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