ARTICLES and NOTES - Notarius International

238 O. Soergel/O. Stöcker, EU Enlargement and Property Law Notarius International 3-4/2002
The so-called Auflassung (conveyance) under German
law – the agreement between the transferor of the real
property and the transferee of the real property with regard
to the transfer of title – (§ 925 (1) (1) BGB) – comes
within the second category of contracts.
In Example 2 therefore if one applies the principle of
separation (Trennungsprinzip) in relation to the provision
of security, the position is that in an initial contract (the
loan contract and indeed in the provisions in it regarding
the security to be provided by the borrower) the obligation
of the borrower to provide the security is established
inter partes. This first contract is therefore the causa of
what is effected in the later, second contract; and in this
second contract (the contract in rem for the provision of
security) the lender is provided with the security interest
with erga omnes effect and the obligation of the borrower
to provide the security is satisfied at the same time.
Diagram 2: Principle of Separation (Trennungsprinzip)
in relation to security over real property
2.3. Causality and Abstraction
If one follows the principle of separation (Trennungsprinzip),
then the relationship between these two – separate
– contracts of obligation and performance (Verpflichtungsgeschäft
– Erfüllungsgeschäft) has to be clarified.
The pair of concepts causality and abstraction (Kausalität
– Abstraktion) clarifies this relationship.
The concept of causality (Kausalität) is related to the
(Roman Law) concept of the causa which we have already
been mentioned. In Roman law – and even in modern-day
legal systems – the legal basis for the (in rem)
change in the legal attribution of a thing or a right was
understood by reference to this concept. The Romans
themselves started from the point that such a change in
attribution always had a basis which justified it, namely
the causa. The transfer of a thing was not an end in itself
but rather it always happened in order to fulfil some purpose
that lay outside the transfer. The same applied (and
still applies 4 ) with the creation of a security.
Diagram 3: Causa
Unity or separation (Einheit or Trennung), the difference
between these two principles and their connections with
one another also concerns German legal practitioners. It
arises in the context of real property transactions which
were entered into before 3 October 1990, the day on which
the Unification Treaty came into force in the so-called
Neue Bundesländer and East Berlin, in other words in the
territory of the former German Democratic Republic.
The Civil Code of the former German Democratic Republic,
which is basically still applicable to these transactions
2 , started from the principle that the obligation and
the performance formed a single unit (principle of unity).
The question arose as to whether a contract for the purchase
of real property that was formally defective under
the law of the former German Democratic Republic
could satisfy the requirements of § 313 (2) BGB (in its
former version) (Auflassung – conveyance and Eintragung
– delivery). The Bundesgerichtshof (Federal Supreme
Court) has answered this question in the negative,
because § 313 (2) BGB (old version) establishes the principle
that the obligation and the performance are separate
and it cannot therefore be applied to formally defective
purchase contracts entered into pursuant to the Civil
Code of the former German Democratic Republic. 3
The key question therefore is what legal fate the in rem
transaction (the transfer, the provision of security) suffers
if there is no causa – in other words no obligation– or if
the causa is not effective or if it falls away at a later date
for some reason. Does this actually affect the in rem
transaction in any way And if so, how
In continental Europe, particularly in the states contemplating
reform, many civil codes contain a version of the
principle of causality (Kausalitätsprinzip) to a greater or
lesser extent. This principle – in its pure form – starts
from the basis that without an effective causa there
cannot be an effective in rem transaction, meaning that
there cannot be any change in legal attribution. Once
again we can cite an example from Polish law:
Article 156 of the Polish Civil Code: ”In the event that a contract
to transfer title is entered into in satisfaction of an obligation
which arises out of an earlier contract that imposes an obligation to
transfer title …, the efficacy of the contract to transfer title is dependent
upon the existence of this obligation.“
In contrast the principle of abstraction (Abstraktionsprinzip)
that applies in German Law leaves the efficacy
of the in rem transaction, the transfer for example, un-
2 Cf Article 8 of the Unification Treaty in comparison liaison with Article
232 § 1, Art. 233 § 2 (1) and § 7 EGBGB (Introductory Law to
the BGB).
3 Supreme Court judgment of 10.12.1993 – V ZR 158/92, ZIP 1994,
232 = NJW 1994, 655, 656, also EWiR 1994, 307 (Hess); cf too Jauernig,
Trennungsprinzip und Abstraktionsprinzip, JuS 1994, 721, 726.
4 in detail Esser/Schmidt, Schuldrecht, Vol. I, Part 1, 8th Edition, Page 93
onwards: causa und Geschäftszweck als Elemente des Schuldvertrags.