ARTICLES and NOTES - Notarius International

Notarius International 3-4/2002 O. Soergel/O. Stöcker, EU Enlargement and Property Law 237
Such misunderstandings are particularly evident in the
discussions on the introduction of a non-accessory security
law into existing national law, in addition to the concept
of accessory mortgages which already exist virtually
everywhere. On both sides inadequate dogmatic clarity
about the concepts of causality, accessoriness and
security purpose (Kausalität, Akzessorietät and
Sicherungszweck) and an incomplete understanding of
the meaning of these concepts and the connection between
them lead regularly to resistance and reservations
in relation to proposed reforms.
2. Concepts and connections between them
2.1. Obligation and Performance
Under German law a fundamental distinction has to be
made in all contracts between incurring an obligation
(Verpflichtungsgeschäft – obligation transaction) and performing
this obligation (Erfüllungsgeschäft – performance
transaction).
The obligation contract (Verpflichtungsgeschäft) relates
(only) to rights and obligations between the parties
to the transaction; the legal effects of the transaction are
therefore limited to the contract parties.
Example 1: In an contract for the purchase of real property – on
the one hand the buyer has the right to demand transfer of title to
the item purchased, on the other hand the seller has the right to
payment of the purchase price; with corresponding obligation on
the one hand of the seller to transfer title to the item purchased to
the buyer and on the other hand of the buyer to make payment of
the purchase price.
Example 2: In a loan contract – on the one hand the borrower
has the right to receive payment of the loan, on the other hand the
lender has the right to demand the creation of the contractually
agreed security (for example: charges over property – mortgage
(Hypothek) or land charge (Grundschuld), to payment of the contractually
agreed interest and to repayment of the loan; with corresponding
obligation on the one hand of the lender to pay over the
loan, on the other hand of the borrower to provide the contractually
agreed security (for example Hypothek or Grundschuld), to pay
the contractually agreed interest and to repay the loan.
The performance (Erfüllungsgeschäft) must be distinguished
from the obligation (Verpflichtungsgeschäft); it
has a two-fold effect. The first effect relates only to the
relationship between the contract parties. When the contract
parties perform their obligations, the mutual rights
and obligations are extinguished. To stay with the same
examples:
Example 1: The buyer pays the purchase price owed and the
right of the seller to payment of the purchase price is thereby extinguished;
the seller delivers title to the property, thereby extinguishing
the right of the buyer to the transfer of title to the property
purchased.
Example 2: The lender pays over the loan, thereby extinguishing
the right of the borrower to receive payment of the loan; the
borrower has provided the security, paid the contractually agreed
interest and repaid the loan, thereby extinguishing the corresponding
rights of the lender.
The second effect in contrast changes the legal attribution
of the property that is the subject of the obligation.
In Example 1 title to the property purchased passes to the
buyer; at this point in time the owner of the property purchased
is no longer the seller but the buyer. Similarly
with the purchase price: with a cash payment the seller
becomes the owner of the money when it is handed over;
in a credit transaction the seller becomes the holder of the
credit right at the time of the credit transaction. In Example
2 the lender receives the security and becomes the
holder of it. The situation with regard to the payment
streams is the same.
2.2. Einheit – Trennung
These two concepts relate to the question of whether
the obligation (Verpflichtungsgeschäft) and the performance
(Erfüllungsgeschäft) form a single unit from a legal
point of view (Einheit) or whether they are two separate
contracts (Trennung). Dogmatically both constructions
can be found and supported and both constructions are to
be found in European legal systems.
If one follows the principle of unity (Einheitsprinzip)
then – to stay with Example 1 – the purchase contract creates
not only the obligations to transfer title and to pay
the purchase price; it also alters property rights at the
same time (transfer of title to the property purchased,
transfer of title to the underlying purchase price).
To illustrate this we can cite the legal rule laid down in Article
155 § 1 (1) of the Polish Civil Code: “Through a purchase contract
… or some other contract which imposes an obligation to transfer
title to a specific thing, title is transferred to the transferee, ....”
If on the other hand one follows the principle of separation
(Trennungsprinzip) – as the German Civil Code
(BGB) does – then the reciprocal obligations are laid down
in an initial contract. This contractual base which binds the
parties and is the justification for the subsequent change of
legal attribution is also known as the “causa”. The performance
of the obligations entered into on the basis of this
“causa” and the associated changes in attribution are not
effected in this first contract however – hence the principle
of separation– but in a second and separate contract. 1
Diagram 1: Principle of Separation (Trennungsprinzip)
1 The lack of clarity – from the German perspective – with which foreign
legal systems distinguish between unity and separation (Einheit – Trennung)
and Einheit is shown by the example of France: Stadler, Gestaltungsfreiheit
und Verkehrsschutz durch Abstraktion, 1996, page 29 onwards,
which also points out that “the problems with the Trennungsprinzip
have been “brought into” French law predominantly by German
authors who are accustomed to thinking in these terms”. This comment
applies to the increasingly common phenomenon, found not only
in France, whereby on the one hand foreign colleagues look on in wonder
at the German dogmatic principle and on the other German colleagues
have little sympathy for what they view as the less dogmatic intellectual
approach of their foreign colleagues.