ARTICLES and NOTES - Notarius International

Notarius International 3-4/2002 O. Soergel/O. Stöcker, EU Enlargement and Property Law 239
touched in the event that there should be no effective causa.
This principle can be found in § 873 (1), § 929 sentence
(1) BGB. 5
Diagram 4: Principles of Causality and Abstraction
(Kausalitäts-/Abstraktionsprinzip)
security and the contract creating the obligation to provide
it; this relationship is determined through the principles of
causality or abstraction (2.3. above). Accessoriness (Akzessorietät)
on the other hand concerns the relationship of
the security to the debt that it is securing and not to the contractual
clause giving rise to the obligation to create it.
Diagram 5: Causality and Accessoriness (Kausalität –
Akzessorietät)
The significance of the difference between the two solutions
is seen with insolvency:
In Example 1 if the transferee of the property becomes
insolvent then – if there is no effective causa – according
to the principle of causality the transferor can single out
the property from the transferee’s estate because the lack
of an effective causa means that title has not passed to the
transferee and the property has not therefore fallen into
his estate for distribution to his creditors. According to
the principle of abstraction, in such a case the transferor
with his claim for enrichment has a mere claim in the insolvency
against the estate of the insolvent transferee that
is available for distribution to creditors.
Similarly in Example 2, if the holder of the security becomes
insolvent, under the principle of causality the provider
of the security has a claim against the insolvent estate
for rectification of the property register if there was
no effective creation of security in favour of the holder of
the security because there was no effective causa. Once
again the opposite is the case with the principle of abstraction:
here, despite the lack of an effective causa, effective
security is given to the lender with the creation
and registration of the security. In such a case the provider
of the security only has a claim for unjust enrichment
against the holder of the security which, in the case of the
latter’s insolvency, is merely a claim in the insolvency
against the estate available for distribution.
2.4. Accessoriness and Non-accessoriness
Although structurally related to the twin concepts causality
and abstraction (Kausalität – Abstraktion), the two
concepts accessoriness (Akzessorietät – Nicht-Akzessorietät)
have nothing to do with them.
In the context of security interests, accessoriness (Akzessorietät)
concerns the relationship between the security
interest and the debt that it secures.
This relationship – security interest/secured claim – has
to be distinguished from the relationship between the security
interest and its causa. The relationship security interest/causa
is the relationship between the provision of the
The security interest is accessory if by operation of law
its existence depends on the existence of the debt to be
secured (Bestandsakzessorietät) or if by operation of law
the creditor is only entitled to it if he is also the holder of
the debt to be secured (Zuständigkeitsakzessorietät). Examples
of such accessory security interests in German
law are the surety contract (Bürgschaft), the lien (Pfandrecht)
over movables or receivables, the Auflassungsvormerkung
(priority notice on the property register of a conveyance)
and the Hypothek (mortgage).
Diagram 6: Mortgage (Hypothek)
The security interest is not accessory if by operation of
law it neither depends on the existence of the debt to be secured
nor dependents upon the fact that the holder of the
security interest is also the creditor of the debt being secured.
An example of such a non-accessory security interest
under German law is the Grundschuld (land charge).
5 The legal consequence of the principle of abstraction (Abstraktionsprinzip)
– effectiveness of the property law transaction despite ineffectiveness
of the causa – does not however mean that the unjustified
legal position of the transferor is definitive. The compensation between
the two contract parties – transferor and transferee – results rather from
the principles of the law on unjust enrichment. The transferor who has
suffered the loss can basically demand that the unjustly enriched transferee
return the enrichment, can claim it back – (“kondizieren”).