Abstraction principle (law)
The principle of abstraction is one of the principles of German civil law ( doctrine of the transaction ). It has established itself under the influence of Savigny in the 19th century and enshrined since 1900 in the Civil Code (BGB).
Basis: The principle of separation
The principle of abstraction based on the separation principle and states that causal business ( law of obligations ) and abstract business (matter legally ) are independent legal existence. This principle is not readily understandable for the layman. Therefore, the following example should serve to illustrate:
The German private law separates here three operations (or transactions ): First Müller and Friedrich have a purchase agreement pursuant to § 433 para 1 BGB closed. This is a causal business ( business requirement ) with the contents:
But has only given as Friedrich Müller the car, he has transformed from abstract business pursuant to § 929 sentence 1 BGB, in the form of a disposal business, property on Müller.
Müller on the other hand fulfilled his obligation by payment, so transfer of ownership and the money handed over immediately.
Development
The principle of abstraction results from the analysis of transactions in the Roman Empire. There, in respect of certain transactions an implementation on the forum was needed. It was concluded that in order to achieve the desired legal effect not only an agreement, but rather a detached therefrom, abstract act of implementation of the Agreed was necessary precisely. Starting point was the emancipation process that was necessary to become full Roman citizenship. Especially for admission to certain public offices, it was necessary to be free of Roman citizens. This was for the young Romans did not regularly fully compatible done with his position under the authority of his father, the Father Familiae, the existence of all members of his family restricted in their freedom, that by attaining a certain age a kind of coming of age and thus leaving the paternal rule of violence. A way out was to a provision that after three sales of the Son of his sovereign power lost in foreign servitude the father on the son. In order to achieve the emancipation of the father wore on the forum his Son into the bondage of a collaborative third party, regularly a family friend. This dismissed the son immediately informed of his service. After three-time implementation of this farce was the son finally free and entitled to accept public office.
For this process has been concluded, the fact that the three parties had agreed to allow the son to the emancipation from paternal authority, was not sufficient to develop the desired legal effect. Rather, an additional act, an rechtsändernder contract was in addition to this only mandatory, but not quite formative contract still required to achieve the agreed individual action. This consisted in the implementation of agreed action emancipation on the forum.
In fact, independently of the question whether otherwise in the Roman Empire existed the abstraction principle, at least such procedures only the fulfillment of procedural requirements is, as at the present time due to existing procedural requirements declarations of intent, which initially take place orally, once again, in compliance with requirements such as writing must be repeated or notarization. The previous simple declaration causes no obligation, but is positive and thus ineffective. The Roman civil law knew - just like the other European based on the Roman Civil Law works of the law such as the Civil Code in France - no abstraction principle.
Content of the abstract principle
The abstraction principle now states that the abstract shops - in the example case of Müller and Friedrich ie transfer of ownership of the vehicle and transfer of ownership of money - also are effective when the causal business ( undertaking business), so the purchase agreement is invalid, because both from each other in their legal existence are independent. Such a case would be present, for example, if Friedrich would not have been legally competent at the conclusion of the purchase contract because of absolute 'drinking ( § 105 para 2 BGB). Then, the purchase agreement is invalid, Müller but is still the owner of the car, when Frederick was legal capacity again in the transfer of ownership. The validity of a disposition is independent of the claim for performance of an obligation.
The advantage of the abstraction principle is the fact that the error in available business and financial commitment can be assessed separately. Thus, the relatively simple operative ( rem ) contract without regard to the potentially complicated mandatory ( law of obligations ) contract is in effect. This creates legally vulnerable, but first effective conditions on which the right-hand traffic can align his actions without the need for major exams. If Müller by an abstract business acquires the property, although the causal underlying business ( the purchase agreement ) is invalid, he can still sell the car without worries: He's finally become the owner. If Müller has debts, his creditors could seize the car to have to do without worrying about the contract of sale.
As with the abstract effective rem business at unwirksamem obligation business but no final goods assignment is to be made , there is a need for provisions in the event that the business is done in rem without an effective business is the obligation (legal ) basis for this. Used for this purpose the enrichment law (§ § 812 et seq BGBVorlage: § / Maintenance / buzer ). The Civil Code thus provides a way of voiding the transfer of property. § 812 para 1 BGB regulates in this example, that Frederick may reclaim ownership of the car, if the reason for the transfer of ownership transaction ( the purchase agreement ) is omitted or did not exist from the beginning.
While in normal traffic commitment and available business barely visible come to light, but carried out by an implied action, the formal separation of the purchase and sale of land is clearly marked: The Parties shall conclude the necessary contracts by deed before a notary. This is also done first, the obligation business, namely the provision that the seller sells his property to the buyer and receives a purchase price. Then, the Parties declare additionally the conveyance, that is, they include a second contract by express agreement that the property is to go to the property from the seller to the buyer. The conveyance is a prerequisite for application to the Land Registry for registration of the new owner. It is only then usually placed at the Land Registry, if the purchase price was (eg escrow account) paid to a private escrow account. Only when the Land Registry has made this entry in the land register, the buyer has actually acquired the ownership of the land and also the available transactions are completed.
Comparative
In many other jurisdictions, instead of the abstraction principle, the principle of causality.
Although the Austrian law separates obligation transaction (eg purchase contract; under German law the causal business) and available business (eg handover; under German law the abstract business) as stringent, but allows neither an abstract commitment or an abstract disposal business. Instead, both must each be causally: The obligation business must be causal in the sense that there is a reason that makes it economically. Furthermore, the available business in the sense must be causal, that it is only effective if a valid binding transaction, a title is (the principle of causal tradition). This results in the following scheme: economic purpose causal binding obligation → business - causal bond → available business
The French Civil Code and the Portuguese law knows no distinction between causal and abstract business Business: Who buys a car for example, is (in principle ) with the contract of sale the owner.
Criticism of the principle of abstraction
The principle of abstraction has often been criticized since its introduction in the legal literature. Many authors complain that uniform circumstances will split into artificial parts. This is hardly understandable for legal laymen. Uwe Wesel criticized at all, Savigny had the abstraction principle developed due to erroneous interpretation of historical sources, as in Roman law, no such abstraction principle was known. In Roman law, the effectiveness of the assignment is dependent on the effectiveness of the sales contract. Was this invalid, could not go beyond the property and the seller could demand the return of the purchased item with the rei vindicatio. Furthermore, the principle of abstraction leads to unfair results because it also holds on to the transfer of ownership if this was no reason the underlying contract of sale is void, for example. Reached a climax criticism during the time of National Socialism, as the existing legal due to their complexity rejected as " unvölkisch " and reforms were demanded.
The principle of abstraction has been attacked as part of the unification of civil law within the European Union. Germany and Estonia are the only Member States where the abstraction principle.
In the GDR, the abstraction principle was abolished by the Civil Code of the German Democratic Republic ( CC) of 19 June 1975 which entered into force on 1 January 1976. For made since 3 October 1990 transactions again the abstraction principle of the Civil Code also applies in this area.
A look at the legal exercise shows that neither the principle of abstraction of the Civil Code nor the principle of causality, for example, the code civil bring substantial benefits. It eventually occur the same legal problems. The differences resulting from the legal constructions solutions are different. A different value exists but not well.