Einreden gegen Grundpfandrechte beim Wechsel des Grundstückseigentümers
1. Edition 2010
Bonn University Press at V&R unipress
Bonner Rechtswissenschaftliche Abhandlungen -
According to German mortgage and land charge law, the owner of encumbered land may be entitled to an objection (exceptio) against the assertion of the encumbrance. The German Civil Code (BGB) explicitly regulates the legal consequences regarding such an objection if the encumbrancer assigns the encumbrance to a third party: As a rule, the owner does not lose an objection he had against the previous encumbrancer, unless the purchaser of the encumbrance acquired the encumbrance in good faith. However, the Civil Code does not include any rule regulating the legal fate of such an objection if it is not the encumbrancer assigning his encumbrance but the owner assigning his ownership to a third party. It is the aim of this book to find a solution to this problem by taking into consideration the motives of the legislators of the Civil Code at the end of the 19th century, the differing opinions on this problem in modern German jurisprudence and the relevant case-law.