National Reports on the Transfer of Movables in Europe

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1 Schriften zur Europäischen Rechtswissenschaft /European Legal Studies /Etudes juridiques européenes 7 National Reports on the Transfer of Movables in Europe Volume 1: Austria, Estonia, Italy, Slovenia Bearbeitet von Wolfgang Faber, Brigitta Lurger 1. Auflage Taschenbuch. X, 638 S. Paperback ISBN Format (B x L): 14,1 x 22,4 cm Gewicht: 840 g Recht > Zivilrecht > Internationales Privatrecht > Europäisches Privatrecht Zu Inhaltsverzeichnis schnell und portofrei erhältlich bei Die Online-Fachbuchhandlung beck-shop.de ist spezialisiert auf Fachbücher, insbesondere Recht, Steuern und Wirtschaft. Im Sortiment finden Sie alle Medien (Bücher, Zeitschriften, CDs, ebooks, etc.) aller Verlage. Ergänzt wird das Programm durch Services wie Neuerscheinungsdienst oder Zusammenstellungen von Büchern zu Sonderpreisen. Der Shop führt mehr als 8 Millionen Produkte.

2 National Reports on the Transfer of Movables in Europe Volume 1: Austria, Estonia, Italy, Slovenia edited by Wolfgang Faber / Brigitta Lurger Schriften zur Europäischen Rechtswissenschaft / European Legal Studies / Etudes juridiques européennes Band 7 / Volume 7 / Volume 7 European Legal Studies Institute, Osnabrück Molengraaff Institute for Private Law, Utrecht Amsterdam Institute for Private Law Institute of European and Comparative Law, Oxford Institut für Zivilrecht, Ausländisches und Internationales Privatrecht, Graz

3 Schriften zur Europäischen Rechtswissenschaft / European Legal Studies / Etudes juridiques européennes herausgegeben im European Legal Studies Institute, Osnabrück von Christian von Bar im Molengraaff Institute for Private Law, Utrecht von Ewoud Hondius im Amsterdam Institute for Private Law von Martijn W. Hesselink im Institute of European and Comparative Law, Oxford von Stefan Vogenauer im Institut für Zivilrecht, Ausländisches und Internationales Privatrecht, Graz von Brigitta Lurger This book has been published with the fi nancial support of: Bundesministerium für Wissenschaft und Forschung (Vienna). The whole series of national reports is supported by: Swiss Institute of Comparative Law (Lausanne); Land Salzburg; Evers-Marcic-Stiftung an der Rechtswissenschaftlichen Fakultät Salzburg. ISBN The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at by sellier. european law publishers GmbH, Munich. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior permission of the publisher. Design: Sandra Sellier, Munich. Production: Karina Hack, Munich. Printing and binding: AZ Druck und Datentechnik GmbH, Kempten. Printed on acid-free, non-ageing paper. Printed in Germany.

4 1. Ownership and other property rights 13 The structure of the ABGB has been inspired by the ancient Roman lawyer Gaius, who divided his textbook Institutiones in three sections: personae, res and actiones. The first part of the ABGB regulates the law of persons ( ), the second part deals with property law ( ), including, however, the law of succession and the main part of the law of obligations (labelled as personal property rights, 859 ff). The third and last part is called common rules of the law of persons and property law ( ). In nowadays legal practice and legal education, this structure is of no importance at all. In textbooks and legal thinking in general, the code s structure is completely overlapped by the pandectist system, which has been derived from German doctrine in the late 19 th century after the enactment of the German Civil Code (Bürgerliches Gesetzbuch, BGB). 8 Austrian private law can, therefore, be divided into five parts: General part (Allgemeiner Teil), law of obligations (Schuldrecht), property law (Sachenrecht), family law (Familienrecht) and law of succession (Erbrecht). For this report, the rules of property law are of main interest. In the ABGB, property law provisions are laid down in (definitions, possession, ownership, pledge and servitudes), (mainly dealing with co-ownership) and in (acquisitive prescription and some related aspects). Some property law provisions regarding movables are contained in the Commercial Code (Handelsgesetzbuch, HGB), 9 which was renamed and modified with 1 January 2007 and has been, since then, called Unternehmensgesetzbuch, UGB. 10 Some of these rules have, however, been retransferred to the ABGB by the aforementioned law reform, such as the most important aspects of 366 f HGB concerning good faith acquisition. Especially with regard to immovable property, there are also some special statutes to be considered, such as the Land Register Act (Grundbuchsgesetz, GBG), the Baurechtsgesetz, providing for a special right to erect a building on another person s land, or the Wohnungseigentumsgesetz (WEG), dealing with a special kind of co-ownership of apartments. Finally, there are some provisions in insolvency and enforcement law, safeguarding the effectiveness of property rights against creditors. To a large extent, the rules on movable and immovable property follow common principles. 11 For instance, the rules on the protection of possession and the protection of ownership are exactly the same; the rules on the transfer of ownership are the same, except that the requirement of delivery for 18 Enacted in 1896, effective since The HGB is of German origin: The German Commercial Code of 1897 was enacted in Austria in Act Modifying Commercial Law (Handelsrechtsänderungsgesetz, HaRÄG), Austrian federal law gazette (Bundesgesetzblatt, BGBl) I 2005/ The Austrian understanding of the terms movable property and immovable property will be discussed in chapter 4.

5 14 Austria movable property is replaced by the requirement of registration for immovable property. As compared with other parts of Austrian private law, the property law rules are rarely affected by law reforms. In particular, the provisions on acquisition, loss and protection of ownership of movable property have almost remained untouched since Another important aspect of Austrian private law, including property law, has already been indicated above: the German influence. This influence takes effect on different levels. On the one hand, a number of important law reforms have been inspired by German law, particularly following the enactment of the German BGB, which led to three big reform Acts in On a second level, which is more relevant with regard to movables, significant German influence can be observed in doctrine. A central example is the concept of a separate real agreement (Verfügungsgeschäft) in the transfer of property rights. 14 German court rulings form a third level of influence: When new problems arise, the Austrian Supreme Court (Oberster Gerichtshof, OGH) regularly takes into account, and often follows, the view of the German Supreme Court (Bundesgerichtshof, BGH). This is facilitated by the fact that Austrian and German private law are rather similar in a great number of aspects. As to the relevance of case law in general, it has to be clarified right at the beginning that a doctrine of binding precedents does not exist in Austrian law; courts are only bound to statutory law. In legal practice, however, Supreme Court rulings are of remarkable importance. Lower courts usually follow these decisions and also the OGH, which decides in several chambers (senates), 15 usually upholds the opinions it has developed. Nonetheless, from time to time it happens that the OGH changes its view, or that the different senates of the OGH develop diverging views on the same subject matter. 12 Except, e.g., a reform of the law of finding, which entered into force in 2003 ( 388 ff ABGB, see below, 14.1.) and slight adaptations regarding good faith acquisition with 1 January 2007 (see chapter 12). Furthermore, 357, 359, 360, and 1474 ABGB were eliminated by the Deregulation Act 2006, BGBl I 2006/113. These provisions, dealing with a division of ownership (of land) into rights of a main owner (Obereigentümer), who is only entitled to the substance, and rights of a sub-owner, who is entitled to the substance and, exclusively, to the profits of the land (Nutzungseigentümer), have been inapplicable ( dead law ) since the abolition of remaining feudal structures in 1848 and See Spielbüchler in Rummel, ABGB I 3, no Concerning property law, the third of these modifications (so-called dritte Teilnovelle of 1916) mainly amended the protection of immovable property against neighbours and introduced new provisions to the law of pledge (Pfandrecht). 14 See below, There exists a certain distribution of competences between the different senates of the OGH; however, it often happens that identical issues are treated by different senates.

6 1. Ownership and other property rights Characteristics of property rights (rights in rem) in contrast to obligations It has already been indicated that property rights and obligations are regarded as fundamentally different concepts. The difference is not only a dogmatic one, but has important practical consequences, especially in insolvency and with regard to enforcement. Property rights 16 are defined as rights in rem (dingliche Rechte) with effect against everyone ( absolute character, effect erga omnes). These terms describe the following effects: A person entitled to a right in rem has direct and immediate power over the object of this right. The right in rem, therefore, produces a direct relationship between the holder of the right 17 and the object affected by the right. This can be described as the positive or internal side of a property right. The erga omnes effect describes the second aspect of a property right, i.e., it gives the power to exclude everyone else from the enjoyment of the asset. This absolute character can be described as the negative or external side of a property right. 18 It also provides protection in the insolvency of another person holding the asset. These two aspects, the positive and the negative side of a property right, are related with each other and necessarily correspond in their extent. 19 In other words, the subject of property law is the allocation of property interests. It regulates to whom a thing or a proprietary interest shall belong and how far this legal position shall extend. 20 Obligations, on the other hand, do not have in rem character. Instead of creating a relation between a person and a thing, they produce a relation between a person and another person. One person, the creditor, can demand performance from the other person, the debtor. Performance can be any conduct, an act as well as an omission. Obligations are relative rights, they do not have absolute effect. In principle, the only person tied to the obligation is the debtor. 21 The debtor is liable with all of his assets. If these assets 16 See the enumeration below, a). 17 In land law, a proprietary right can even be linked to the ownership of another asset: This is true of real servitudes (as opposed to personal servitudes where the right is linked to a particular person), under which the owner of one plot of land is entitled to the toleration of a certain conduct by the owner of another plot of land, such as the former driving over the latter s land. See 473 ABGB and Koziol/Welser, Grundriss des Bürgerlichen Rechts I 13, These effects will be discussed in more detail below, See, for instance, Spielbüchler in Rummel, ABGB I 3, 354 no. 2; Koziol/Welser, Grundriss I 13, 280 ff. 20 Koziol/Welser, Grundriss I 13, 238; in more detail: F. Bydlinski, System und Prinzipien des Privatrechts (1996) 315 ff. 21 Only under certain restrictive requirements, a violation of such obligatory claims may give rise to a claim for damages; see below, on double sales.

7 16 Austria prove to be insufficient to fulfil the debtor s obligations, the obligation will be enforceable only as a dividend claim in insolvency. In some respect, these two different categories are linked with each other: The violation of a property right, such as ownership, can create obligations, like an obligation to pay damages or an obligation to reverse the unjustified enrichment. Furthermore, also property law itself produces relative rights against the interferer. The latter is bound to restore the asset and/or to stop interfering with it. 22 Furthermore, it is accepted that mere obligatory rights have, in some respect, absolute effect against third parties: The creditor can demand performance from only one person. His position of being the creditor is, however, protected against third parties in a certain manner: Where a third party interferes with an obligatory right, this may, under certain heavily debated requirements, result in a claim for damages against this third person. Where a third person, e.g., the previous creditor after having assigned the claim, receives performance, this person must transfer this benefit to the (real) creditor pursuant to the unjustified enrichment rules General principles of Austrian property law Similarly to German law, Austrian property law is governed by some general principles, which more or less apply to all types of rights in rem, to movable as well as immovable property. The main principles are the following: 24 (a) According to the principle of the numerus clausus (exclusivity, Typenzwang) of property rights, the number of available types of property rights is restricted to those expressly provided by statutory law. Property rights, therefore, cannot be created autonomously by the parties. The parties can only choose one of the types provided by law. Austrian law recognises the following types of property rights: Ownership (Eigentum), 25 pledge (Pfandrecht), 26 servitudes (Servitut, Dienstbarkeit), 27 Reallast (the right to demand a certain positive performance such as providing daily food from the owner of a particular immovable property), 28 Baurecht (right to erect a 22 See below, 1.2. and 1.4. on the notion of ownership and the protection of ownership. 23 On these questions see, e.g., Koziol/Welser, Grundriss I 13, 238, II 13, 1 f. On the question of the tort law consequences of an infringement of another s obligatory right, see , below. 24 See, for instance, Iro, Sachenrecht 3, nos. 1/5 ff; Koziol/Welser, Grundriss I 13, 238 ff; see also F. Bydlinski, System und Prinzipien ff ABGB ff ABGB ff ABGB. 28 Not explicitly regulated in the ABGB, but accepted in 530 ABGB and 9, 12 of the Land Register Act (Grundbuchsgesetz).

8 1. Ownership and other property rights 17 building on another s land), 29 the right to operate a mine (Bergwerksberechtigung) and a special kind of co-ownership of apartments (Wohnungseigentum). 30 Further categories may be provided for by statutory law; most of these types are similar to servitudes. 31 Functionally, the right of a buyer of movables under reservation of title can also be considered to have in rem effect. 32 In some respect, a lessee is granted rights erga omnes as well, and his position is described as a quasi-right in rem. 33 Possession as such is not considered a right in rem. A principle closely related to the numerus clausus rule is that also the content of property rights is mandatorily determined by law (Typenfixierung, definition of types). Both aspects intend to serve the concept of legal certainty: Third parties, who, due to the absolute effect of proprietary rights, are required to respect these rights, shall be able to make out their content. In the end, this also facilitates the marketability of property rights: The transferee shall have a clear idea of which kind of right he acquires, so that it is not necessary to scrutinise the content of the right in question. Individual negotiations about the effects of a property right are neither necessary nor allowed. (b) The principle of publicity (Publizität) requires that the existence as well as the transfer of property rights shall be discernible to third persons. With regard to movables, this function should be served by possession; with regard to immovables, by an entry in the land register (Grundbuch). However, it is evident that the publicity function of possession has lost much of its persuasive power in nowadays economic reality. This is not so much caused by the fact that the transfer rules of the ABGB itself provide for exceptions to the principle of physical delivery, especially by allowing the transfer of ownership by a constitutum possessorium, where the transferor keeps the goods under his physical control. Such agreements are rarely concluded in practice. The reason, rather, is that goods are often bought under retention of title, acquired by means of financial leases, or used on the basis of ordinary leasing contracts. In all these cases, the person exercising physical control over the movable is not the owner. Although this observation would be rarely disputed among lawyers, there has not been any extensive critical debate about the role of publicity in relation to the ownership in movables. 34 The most important practical problems regarding publicity 29 Baurechtsgesetz Wohnungseigentumsgesetz E.g., the right to have telecommunication masts placed on another person s land according to 5 ff Telecommunications Act (Telekommunikationsgesetz 2003). 32 See below, and See below, With a focus on security rights, see Migsch, Faustpfandprinzip und Publizitätsprinzip, FS Welser (2004) 711 (730 ff). With a perspective on the role of possession in good

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