1896de Book2 Chapter07 Title01 Part01

GERMAN CIVIL CODE OF 1896

• Based on the English Translation by: Wang, Chung Hui (1907). The German Civil Code, translated and annotated with historical introduction and appendices. London: Stevens and Sons. [available on Archive.org]

BOOK II. Law of Obligations.

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Chapter VII. Particular Kinds of Obligations.

Title I. Sale, Exchange.

Section 433.

• [I] By a contract of sale the seller of a thing is bound to deliver the thing to the purchaser and to transfer ownership of the thing. The seller of a right is bound to transfer the right to the purchaser, and if the right involves the possession of a thing, to deliver the thing.
• [II] The purchaser is bound to pay to the seller the purchase price agreed upon and to take delivery of the thing purchased.

Section 434.

• The seller is bound to transfer to the purchaser the sold object free from rights enforceable by third parties against the purchaser.

Section 435.

• [I] The seller of a piece of land or of a right over a piece of land is bound to procure at his own expense the cancellation of non-existent rights entered in the land register, if they would in case of their existence injure the right to be transferred to the purchaser.
• [II] The same rule applies, in the case of the sale of a ship or of a right in a ship, to the rights entered in the ship register.

Section 436.

• The seller of a piece of land does not warrant the land to be free from public taxes and other public burdens which are not suitable to be entered in the land register.

Section 437.

• [I] The seller of a claim or any other right warrants the legal existence of the claim or of the right.
• [II] The seller of a negotiable instrument warrants that it has not been called in for cancellation.

Section 438.

• If the seller of a claim warrants the solvency of the debtor, the warranty shall, in case of doubt, refer only to solvency at the date of the assignment.

Section 439.

• [I] A seller is not responsible for any defect of title, if the purchaser knows of the defect at the time of the sale.
• [II] The seller shall extinguish all hypothecas, land charges, annuity charges, and pledges with which the object sold is charged, even though the purchaser knows of their existence. The same rule applies to a caution to secure the claim for charging the sold object with any one of these rights.

Section 440.

• [I] If the seller does not fulfil the obligations imposed upon him by 433 to 437, 439, the rights of the purchaser are determined according to the provisions of 320 to 327.
• [II] If a moveable has been sold and delivered to the purchaser for the purpose of transfer of ownership, the purchaser may not demand compensation for non-performance on account of the right of a third party involving the possession of the thing, unless he has delivered the thing to the third party in consideration of his right, or has returned it to the seller, or unless the thing has been destroyed.
• [III] It is equivalent to delivery of the thing to the third party, if the third party become heir to the purchaser, or vice versa, or if the purchaser acquires the right of the third party in any other manner, or buys out the third party.
• [IV] If the purchaser has a claim for delivery against another person, the assignment of the claim is sufficient in lieu of the return of the thing.

Section 441.

• The provisions of 440, pars. 2 to 4, apply even if a right in a moveable involving the possession of the thing has been sold.

Section 442.

• If a seller disputes a defect of title asserted by the purchaser, the purchaser shall prove the defect.

Section 443.

• An agreement whereby the obligation of warranty of title imposed upon the seller by 433 to 437, 439 to 442, is released or limited is void, if the seller fraudulently conceals the defect.

Section 444.

• The seller is bound to give to the purchaser all necessary information concerning the legal relations affecting the object sold, e.g., in the case of the sale of a piece of land, concerning the boundaries, privileges and burdens; and to deliver to him all documents serving as evidence of the right in so far as they are in his possession. If the contents of such a document relate also to other affairs, the seller is bound to give only a publicly certified extract.

Section 445.

• The provisions of 433 to 444 apply mutatis mutandis to other contracts for alienating or giving a charge upon any object for valuable consideration.

Section 446.

• [I] On the delivery of the thing sold the risk of accidental destruction and accidental deterioration passes to the purchaser. After delivery the emoluments accrue to the purchaser, and he bears the burdens attached to the thing.
• [II] If the purchaser of a piece of land is registered in the land register as owner before delivery, these consequences begin with the registration.

Section 447.

• [I] If at the request of the purchaser the seller transmits the thing sold to a place other than the place of performance, the risk passes to the purchaser as soon as the seller has delivered the thing to the forwarder, freighter, or other person or institution designated to carry out the transmission.
• [II] If the purchaser has given special instructions as to the manner of forwarding, and the seller deviates from the instructions without urgent reason, the seller is responsible to the purchaser for any damage arising therefrom.

Section 448.

• [I] The costs of delivery of the thing sold, e.g., the costs of measuring and weighing, are borne by the seller; the costs of taking delivery of the thing or of forwarding the thing to a place other than the place of performance are borne by the purchaser.
• [II] If aright is sold the costs of the creation or transfer of the right are borne by the seller.

Section 449.

• The purchaser of a piece of land shall bear the costs of conveyance and registration ; the purchaser of a right over a piece of land shall bear the costs of the registration in the land register necessary for the creation or transfer of the right, including the costs of the declaration necessary for the registration. In both cases the costs of authentication of the purchase shall also be borne by the purchaser.

Section 450.

• [I] If the risk has passed to the purchaser before delivery of the thing sold, and the seller incurs any outlay on the thing before delivery, which has become necessary after the passing of the risk, he may demand compensation from the purchaser as if the purchaser had charged him with the care of the thing.
• [II] The obligation of the purchaser to compensate for any other outlay is determined according to the provisions relating to management of affairs without mandate.

Section 451.

• If aright to a thing is sold which involves the possession of the thing, the provisions of 446 to 450 apply mutatis mutandis.

Section 452.

• The purchaser is bound to pay interest on the purchase price from the date at which the emoluments of the purchased object accrue to him, unless the purchase price is payable at a fixed time.

Section 453.

• If the market price is specified as the purchase price, in case of doubt the standard market price at the place and time of performance is deemed to be the price agreed upon.

Section 454.

• If the seller has carried out the contract and has fixed a time for payment of the purchase price, he has not the right of rescission specified in 325, par. 2, and 326.

Section 455.

• If the seller of a moveable has reserved ownership until payment of the purchase price, it is to be presumed, in case of doubt, that the transfer of ownership takes place subject to the condition precedent of payment in full of the purchase price, and that the seller is entitled to rescind the contract, if the purchaser is in default with the payment.

Section 456.

• At a sale under compulsory execution the person charged with making or conducting the sale and the assistants employed by him, including the registrar, are not permitted to purchase the object put up for sale, either for themselves personally or through another, or as representative of another.

Section 457.

• The provision of 456 applies also to a sale other than that under compulsory execution, if the authorization to sell has been given by virtue of a provision of law empowering the person giving the authorization to cause the object to be sold on account of another, e.g., in the cases of a sale of a pledged object and of a sale permitted by 383, 385; and also to a sale by a trustee in bankruptcy.

Section 458.

• [I] The validity of a purchase made in contravention of the provisions of 456, 457, and of the transfer of the purchased object depends upon the consent of the persons interested in the sale as debtor, owner, or creditor. If the purchaser demands an interested party to declare whether or not he will ratify, the provisions of 177, par. 2 apply mutatis mutandis.
• [II] If, in consequence of a refusal to ratify a new sale is made, the former purchaser shall be responsible for the costs of the new sale and also for any deficiency.