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universul juridic magazin
Revista Română de Drept Privat

The principle of abstraction in the private german law – its role and place within the mechanisms governing the derived transfer of the property right on european plan

The general principles in the matter of the derived transfer of the property right sensitively differ in the encodings of the European states. The problematic of the property right transfer through the sale-purchase contract on European plan may be analyzed on three ranges, to each range corresponding two antagonist principles. The first range is represented by the antagonism between the Principle of the consensus and the Principle of tradition, the second separating range is between the Principle of unity and the Principle of separation, and the third opposes the Principle of causality to the Principle of abstraction. Each national legislator chose a construction based on a combination between these principles when he legislated on the derived transfer of the property right.
The main inspiration source of the property right transfer of the European systems is the Roman law. Historically speaking, the Roman law is the trunk where from all the three modern alternatives comprised in the main continental civil codes arise: the French alternative, the German alternative, and the Austrian alternative. The French and the German law represented diametrically opposed alternatives while the Austrian and the Swiss law have chosen a middle way. The abstraction principle is indissolubly related to the name of Friedrich Carl von Savigny, the one who conferred it the dogmatic grounding, and to the German pandectistic science of the last half of the 19th century. Ulterior, the theory of the real contract was incorporated in the German Civil Code from the year 1900. The actual legal premises regarding the property right transfer lay in the German Civil
Code (Das Bürgerliche Gesetzbuch – BGB) in art. 929 for the movable goods, and in art. 873 for fixed properties. The property right transfer needs in the German law a second contract besides the sale-purchase contract. For the movable goods, it is composed of the parties’ agreement (Einigung) and of the material handing over (Übergabe), and for the fixed properties it is composed of parties’ agreement (Auflassung) and from the record in the land registry (Eintragung).
The obligation document (das Verpflichtungsgeschäft) and the real document (das Verfügungsgeschäft) are two distinct and separate documents in the German law. The abstraction principle is that regulating the report between these two contracts. It supposes in its external acceptance that the validity and the efficiency of the real document (das Verfügungsgeschäft) is independent from the validity and the efficiency of the obligation document (das Verpflichtungsgeschäft) laying at its basis. In its internal acceptance, the abstraction principle provides that the real contract itself is abstract, acausal from the point of view of its content.
The effects of the abstraction principle between the contracting parties materializes by the fact the seller, victim of a obligation document not valid, has not at disposal the action in revendication for bringing back the sold good in his patrimony (Vindikation) but the action grounded on the enrichment without just cause prescribed by art. 812 in the German Civil Code.
In the relationship with the thirds, the effects of the abstraction principle materialize in the fact the third sub-buyer does not have to inform on the existenc or on the legality of the obligation report concluded in the first sale-purchase contract. As long as the real contract is not corrupted, the third sub-buyer obtains his right from a real owner, fact conferring him a superior protection as compared
to the other juridical systems.
The exceptions from the abstraction principles in the German system are: the identity of vices (Fehleridentität), the conditional relation (Bedingungszusammenhang) and the unity of the juridical document (Geschäftseinheit). For o future European harmonization, it is important to know the alternative adopted by each national legislator for being able to chose in this future an optimum solution in the matter of the derived transfer of the property right.