The Unilateral Retention of Ownership

At the end of the 19th century, insolvency law was described as a science whose foundations were uncertain, whose development was neglected, and whose relationship to other branches of law was "only marginally fertilized by effective legal force" (Oetker, ZZP 14, 1). Only recently, too, with a special focus on this field of law, has it been lamented that in times when (legal) science is confronted with the demand for practically usable and economically productive findings, basic research is neglected (Konecny, FS Rechberger 302). No much better reputation is attached to the retention of title, where because of the many questions unanswered by the law there is talk of a "misery" (G. Graf in Fischer- Czermak/Hopf/Schauer [Hrsg], ABGB im 3. Jahrtausend 12). Although the securing of the crediting seller by retention of title is a quite everyday situation, which cannot be excluded from legal life, its dogmatic embedding is nevertheless disturbed by numerous inconsistencies. In order to address only one of these in concrete terms, it is sufficient to ask the question of how security through retention of title is compatible with the Austrian Faustpfand-principle. One of the reasons for the considerable number of question marks is probably the fact that the legal institution of retention of title is the showpiece of a cross-sectional matter: The situation brings together and interweaves many fundamental legal questions and problems that are often not directly connected in terms of the legal system. The work has set itself the goal of solving some - by no means all - of these questions. The focus is on developing a comprehensive approach that includes all legal matters that affect the legal institution of retention of title. Figuratively speaking, this objective is reminiscent of the attempt to gain a sharp and comprehensive picture by assembling a larger number of different lenses and mirrors - namely those from the general part of civil law, from property law, law of obligations, insolvency law and, last but not least, from corporate law and execution law - in a kaleidoscope, so to speak, and adjusting them until a respectable and coherent overall picture becomes visible.