Концепция овеществления обязательственных прав при приобретении земельных участков в германском праве: проблема совместимости с пандектной систематикой

Abstract

The transfer of title to land is the desired goal of the acquisition of rights to them. The conclusion of a sale and purchase agreement for a land already creates for the acquirer a hope for the imminent registration of rights to immovable property. In German law in the 20th century, the theory “Die Verdinglichung obligatorischer Rechte” began to be developed, which proposes to qualify the acquired position of the acquirer as a real one. Meanwhile, different supporters of this theory make the admissibility of such qualification dependent on different facts. In this article, the author considers these theories, correlates them with the general principles of proprietary rights, and asks the question about the possibilities of various registration techniques — the registration notice of a sale and purchase agreement (which existed in domestic law until 2013) or the German priority notice (Vormerkung) — to give a proprietary effect to the claims arising from obligations that served as a basis for such notices.