Buch 3: Sachenrecht
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Grundpfandrechten | German to English | Real Estate
You have native languages that can be verified You can request verification for native languages by completing a simple application that takes only a couple of minutes. Close and don't show again Close. In case of an assignment of a debt under a legal mortgage, the assignment to the mortgagee must be in writing and the third party debtor must be notified, in case of an equitable mortgage and informal assignment or agreement for the same suffices. As the common law does not recognise future property, only the equitable mortgage is available for mortgaging future debts, including book debts.
This area of the law is extremely important to trade and commerce but will only be discussed here to give an overview of the German law and to illustrate the difference of the conceptual framework of the English and German property laws. In English law, retention of title is only one available security measure and strictly speaking not security as a matter of law ; the charge in particular, which is not available to German law, may achieve similar results.
The basic rules of the retention of title agreement can be stated for both English and German law: The buyer obtains possession and use of the res as if he were already the owner, thus the institution of retention of title is, again, a security method which can be concealed from the outside world. Typically, the lender obtains security for his loan, either by way of the transfer of ownership but not possession in the sold moveable res to the lender for security, or by way of an assignment to him as a security of the future rights that the buyer obtains through the re-sale of the moveable to a third party, or through other arrangements.
By virtue of this position, the buyer can obtain damages if the seller negligently thwarts the occurrence of the event especially full payment which is the subject-matter of the condition. In English law, the primary candidate for an equitable interest would not be the buyer but the seller. Furthermore, the law relating to the sale of goods, to which the retention of title device belongs, is within the domain of the common law, and interventions by equity in this area are generally unusual.
Whether the parties can contract out of this rule, is controversial. The buyer can transfer his right as owner in waiting in a sale to a third party buyer, particularly, if the first seller permits this, but also if he does not. In English law, the seller can obtain protection in these situations mainly by resorting to well-drafted reservation of title clauses in the contract which the courts have subsequently enforced. They are defined as the usually inalienable real right to use a thing and reap the benefit from its use. They have very little importance in moveable property law.
He has no right to dispose of the moveable res, such as its alienation or the creation of a pledge. Even from this succinct account of German moveable property law and its comparison with English law one can gather that the differences between German law and English personal property law are substantial. Both systems rest on quite different epistemic frameworks, despite the functional similarities of their legal institutions in many cases.
Nevertheless, within the general movement of European legal integration, there seems to be the belief that the differences should not be overestimated and can eventually be overcome for a Europe-wide harmonisation of private laws.
Multi-volumed work
But attempts have been made to create EU-wide property rights, mainly security rights, for example a unified mortgage law with regard to land. A unification of the laws would put an end to an enriching legal plurality and abolish a functioning competition between the jurisdictions for the better legal solution in a given case.
A German lawyer would have to give up the idea of a vindication right as the most central remedy for the protection of ownership and get used to a set of quite ancient property torts, which in turn, even more surprisingly to him, become increasingly replaced in practice by the tort of negligence. An English lawyer would have difficulties to understand why, especially in the case of chattels, possession should not be the central basis for the protection of ownership, and why ownership, in contrast to possession, should be an absolute, rather than relative, right.
From a practical point of view, which is usually at the heart of English law, there is not that often the need to re-deliver the actual chattel, the thing in specie, which is typically a replaceable thing that can be bought again with the damages awarded. Where that is not the case, the court may have a statutory discretion. This is somewhat similar to contractual claims, where equity may step in, by way of specific performance.
But it takes a while to explain to a German lawyer what equity is, what it does, and why it exists in the way it does. An English lawyer may find the Roman concept of property rather crude in comparison with the adaptable, versatile and mercurial system of English property rights as it emerges particularly in the context of a trust. These fundamental principles obviously pervade the details of the different legal institutions. German lawyers may have to get used to the floating charge, and English lawyers have to get to grips with the quite complicated German regulation of the sale of a pledged thing and the proceeds arising from it which could probably more easily be dealt with through the device of the trust.
English lawyers may find the overarching concepts and abstract principles of German law in a comprehensive codified form difficult to understand. However, they will also need to realise that, as an exception, the commercially really important German security rights were developed outside the Civil Code, by commercial practice which court decisions and doctrine subsequently recognised, because the BGB provides a type of pledge which follows Roman law and the ius commune, and that has proved to be too inflexible.
Admittedly, they are both animals and both breathe. Similarly, both German law and English law have exceptions to the nemo dat rule since they are confronted with the same problem of resolving a title conflict between two blameless parties. But the fundamental differences of these two legal cultures should have become particularly apparent in such issues of personal property law. There is an understandable fear that especially certain security rights may not always be enforceable in foreign jurisdictions, even within the EU, but in view of applicable conflict of law rules and, potentially, EU directives rather than regulations one need not overemphasise this danger.
It is a well-known theme in comparative law that functionally private laws are often quite similar, but not their legal methods and techniques. A comparative lawyer seeks to familiarise a legal community with a foreign legal system for the purpose of mutual understanding and trade, and may also try to develop a reference system against which different legal institutions can be compared.
And although they all refer to the same object, it also matters in which way they refer to it. Or, in terms of property law: This article first appeared in Journal of Comparative Law, Vol. This account renders English property law virtually unrecognisable, not because it is incorrect in any way, but because it represents the essence of the law in a completely different cultural context, and that is accentuated by the use of a different language German.
Abt. II und Abt. III (here)
I say that advisedly, having originally trained in a Civil law system close to German law and having been teaching English property law in England for some time. The actual situation depends on the jurisdiction in question, see below. Copyright, Designs and Patents Act , ss.
Patents Act , s. Trade Marks Act , s. Such rights have a proprietary quality, but their strong personal aspect is acknowledged in that they are not considered as purely property rights. For a non-possessory security, German law has to resort to outright ownership transfer to the creditor as a fiduciary, see below under F.
In German law, the bailor would be indirect possessor suo nomine mittelbarer Eigenbesitzer , and the bailee direct possessor alieno nomine unmittelbarer Fremdbesitzer. See explanation of the Roman law constitutum possessorium in Nicholas, B Roman Law supra note 75 above at The details surrounding abandonment by the possessor or owner are complicated and controversial, see Hudson, See also below under D.
The same applies in relation to a landlord-tenant situation in immoveable property law.
A Comparison of German Moveable Property Law and English Personal Property Law
Pascoe LR 10 Ch. Hiscock [] 3 WLR There is also the presumption that the owner will be in possession where it is not clear who is in possession of the thing, Bell, Lyster [] 1 KB Great Western Railway Co. The matter is slightly more complex, in that the parties can decide not to refer to the cause of the contract art 17 Obligationenrecht , or exclude certain defences, and thus give their transaction a higher abstract quality, see Koller, A in Guhl Koller et al eds Das schweizerische Obligationenrecht 9th ed Schulthess There are different legal consequences, depending on whether the vitiation of the contract was due to mistake, fraud, usury etc.
There are various additional provisions in the context of this rule, which are not discussed here.
As regards security rights, see Goode, Moore 25 QBD Ali [] AC , Goode, , Bridge, This rule applies both to derivative acquisition of ownership and acquisition in good faith. Only academic writing helps identifying clearly the existence of this burden of proof rule, e. The effect is in most cases the same as in Germany. However, there are differences if a further transaction takes place after the bona fide acquisition and before the claim of the original owner. In Germany, the acquirer can pass ownership derivatively to a third party in the meantime, in Austria not, because the acquirer has never become owner.
Traditions and Transitions Cambridge University Press , , See also the almost identical provision of the Factors Act, s. On the problems of this view, see Goode, The rule operates against the seller, not, if applicable, against the true owner. Jones [] 1 AC 24, Goode, , Bridge, See for more discussion, Goode, The eager reader, who feels missing out on this essential part of legislation, is referred to German property law textbooks, e. British Airways Board [] QB The rules are quite intricate in the detail and depend on other criteria, such as whether the thing in question is on the land or buried in, or attached to, the land, or is lying in or on chattels, see Bell But see also the time limit of 12 years for actions to recover land, Limitations Act , s.
Understanding Property Law supra note 55 at Thus he must be a dishonest taker opening himself up to liability in conversion. See also Re Peachdart Ltd [] Ch There are several qualifications and provisos to this rule, see Bell, Whether the old common law allowance under Greenwood v. The pledgee cannot foreclose. Burdick 10 App Cas 74, Halliday v. Manila Railway Co [] AC In case of inchoate pledges where possession has not been transferred, the matter is more complicated and has not been conclusively decided, ibid.
Traditio brevi manu, i. If the payer is not the owner of the pledged thing, he obtains not only the debt but also its securing pledge. Against that view, The Odessa [] AC , Tankred 1 Vs. See also above under E. Capper 5 Bing. The implications of this provision are not easy to understand from its wording. They do not exist according to Goode, 41, There is special consumer protection regulation for the sale of a pawn under the Consumer Credit Act amended by the Consumer Credit Act This is because the liquidator is expected to have the interests of the insolvent estate and its creditors as a whole in mind, unlike the secured creditor.
See also above under F. On the registration provisions for the non-possessory chattel mortgage, Bills of Sale Act , Amendment Acts , , , see Bridge, Since , a mortgage over land can only be created by way of a charge or this is rare by way of a lease. On the retention of title provisions, see below under F.
Hall 3 Russ 1; see Goode, ; Bell, Thornton 1 CB Official Reveicer 13 App Cas , Holroyd v. Marshall 10 HLC , Bridge, The legal details are, however, unclear. See also Bell, , , Goode, , Bridge, 91, Bell, For the English law see e. Goode, with further references. Worthington, S Personal Property Law supra note 3 at Martin [] 1 WLR Lord Millet in Foskett v. McKeown [] 1 AC Such a charge will typically be void because it has not been registered, see Specialist Plant Services Ltd. See also Bridge, This should be expressed as a specific fraction equalling the debt owed to be held for the seller, and the rest to be held on trust for the buyer himself, otherwise problems of certainty of subject matter of the trust could arise, see Hayton, D and Mitchell, Ch Hayton and Marshall Commentary and Cases on the Law of Trusts supra note at and n See also above under D.
Lawson and Rudden, See the various security rights under English law above under F. The contents of this page may be downloaded and printed out in single copies for individual use only. Making multiple copies without permission is prohibited. The available types of property rights In line with other continental European legal systems, 33 German law recognises only certain types of property rights numerus clausus of property rights, Typenzwang ; 34 the list of available property rights is conclusive and mandatory law.
Possession At first glance, possession in English law does not differ much from German law. Ownership a Nature, extent, content of ownership use, exploitation The contemporary idea of ownership is the liberal concept of full individual ownership. Derivative acquisition of ownership Far more than Common Law systems, Civilian jurisdictions emphasise the difference between the contract a contract of sale or any other contract directed at the transfer of real rights , which creates the obligation to transfer, and the conveyance, the actual transfer of a proprietary right especially ownership in a res which effects the alienation of that res, that is, the passing of the real right from transferor to transferee.
Original acquisition of ownership a Acquisition in good faith from a transferor without ownership The problem is perceived in principle in the same way in English and in German law: Security rights a Pledge From a functional point of view, the pledge is probably that type of property right where German and English property laws closely resemble one another.
By christoph in Literature on November 22,