Bona fide purchaser
The bona fide acquisition by non-entitled is an acquisition by a person not entitled at a transfer of title in good faith.
- 2.1 Requirements
Furniture right thing ( movable property )
Ownership of movable property from the person not entitled to be acquired to § 932 BGB 936 under the requirements of §. Under an unauthorized refers regularly to non-owners, such as a tenant or owner of (more) may dispose not, for example, if insolvency proceedings have been opened against his property. However, § § 932-936 BGB can not overcome deficiencies in the legal transaction, such as legal incapacity of the transferor. The reason for the institution of acquisition in good faith lies in the transport protection thoughts.
Conditions for the acquisition in good faith in accordance with § 932 BGB:
The transferor must be neither owner nor have been authorized to transfer property pursuant to § 185 BGB.
An effective acquisition is possible only through a legal transaction, therefore a good faith acquisition is excluded from the succession.
- Transport business
There must be a transport business, beyond. Because, from an economic identity of the transferor and the transferee is missing. A transport business is not present, for example, if the sole shareholder and director of a GmbH to itself transmits an object which belongs to the supposedly GmbH. A repurchase of the Ineligible is not possible - this can be the case if the purchaser withdraws from the contract of sale and the thing back on is - because it is not a transport business in the cancellation of a contract.
- Warrant of possession
The warrant of possession must speak for the seller. Under loss of the involuntary loss of immediate possession is to be understood without or against the will of the owner.
- Good faith
The purchaser must be in good faith. The buyer is acting in bad faith when it is known or unknown due to gross negligence that the seller is not the owner. While there is for the purchaser no public scrutiny duty, but he must pursue intrusive doubts. In trade § 366 paragraph 1 HGB for the Gutglaubensschutz of the purchaser. Therefore, the seller must be a merchant according to the Commercial Code. The purchaser must then be only in good faith with regard to the right of disposal of the transferor. If the purchaser a representative, so it just depends on the good faith of the representative, not to the person represented, § 166 BGB. Acquisition in good faith ruled out if the buyer is acting in bad faith before the age of acquisition of ownership. When transfer of ownership of a thing under retention of title but the bad faith before entering the full legal acquisition is harmless.
- No loss
The matter may not be the owner of got lost, § 935 paragraph 1 BGB. This is the case if the thing was stolen from the owner, has been lost or the owner has not willfully lost the possession of the goods in any other way. This limited the law to acquire from non-entitled to those cases in which the owner has transferred in some manner by his possession of a thing intentionally to a third party. Has the owner involuntarily lost the immediate possession, the law valued his interest in the preservation of property is higher than the interest of the good faith purchaser for an effective legal assistance. For example, if the owner rents his cause to a tenant and the tenant then sold these goods to a third party, it is not the thing is stolen and the third party can be owners. Even with erroneous giveaway of a thing is no loss.
Remember though § 935 para 2 BGB § 935 para 1 BGB does not apply to cash and bearer bonds, as well as things that were purchased at a public auction.
There are also in § 367 paragraph 1 HGB an exemption for banks that bearer securities, which are shown in the Federal Gazette as been lost, can not acquire in good faith. Exception: § 367 section 2 HGB - good faith with respect to the non-publication in the Federal Gazette of extraordinary circumstances.
Since the reform of the GmbH law on November 1, 2008 can be purchased in good faith from non authorized according to § 16 paragraph 3 Limited Liability Companies Act and the shares of a GmbH. Warrant is the carrier to the commercial register submitted list of shareholders.
The bona fide acquisition by non-entitled under § 367Vorlage: § / Maintenance / RIS search is Civil Code in the Austrian property law an original type of property purchase.
He is quite a political compromise between the interests of the buyer who purchases in good faith and for valuable consideration, and the interests of the true owner (third). The law solves this problem by the fact that in the absence of property but can cause certain qualifications of the foreman to acquire on representational type. The previous owner (third) has after a successful purchase no enrichment claims against the purchaser, because he has lost his property in the same train.
Previously different Austrian law after the " tradesman " and the "merchant" under the Commercial Code. This distinction was abolished by the amendment of the Company Law, the Commercial Code ( UGB), which replaced the Commercial Code since January 1, 2007, solely based on the newly defined concept of law of the entrepreneur. This is congruent with the entrepreneur concept in the Consumer Protection Act ( Consumer Protection Act).
The following requirements ( § 367Vorlage: § / Maintenance / RIS Search Civil Code) the acquisition in good faith from non-entitled are to be applied cumulatively:
- Moving and physical things
- Honesty of the buyer
- Title Pecuniary title (eg purchase, exchange, but certainly not by donation)
- Acquisition of public auction: The privileged nature of the acquirer here explained by the fact that state- authorized bodies for auction are not to shake the confidence of the purchaser.
- Acquisition by the contractor in the ordinary operation of their business: the entrepreneur brings in legal transactions the appearance of a commercial distribution of the matter, which is legitimate expectation of purchase here. This case of the acquisition is in today's economic environment of the highest practical importance, since most goods from companies within the meaning of the law to be sold.
- Acquisition by the steward of the owner ( eg, tenant, borrower, depositary, Präkarist, retention of title the buyer ): The owner is here less worthy of protection than the acquirer, since he has given the matter itself out of hand.