The ,Agreement in rem‘ in the System of Causal Tradition

Historically, the `agreement in rem` as a `contract in rem` in the transfer of rights in rem was `discovered` or `invented` by Savigny in the 19th century. The thesis was based on Roman law sources and then codified in the German BGB in 1900. Its history thus begins only after the codification of the Austrian ABGB (1811, in force since 1812). Although numerous approaches of the BGB were taken up in the course of the three major partial amendments to the ABGB (1914-1916), the German doctrine of transfer of ownership together with its underlying principle of abstraction was not adopted. However, the Austrian doctrine adopted - independently of the wording of the law - the idea of an `agreement in rem` as an additional requirement, which is demanded in addition to a valid basic transaction (`titulus`, e.g. contract of sale) and the `legal transfer` (`modus`, mostly transfer of possession) in the case of derived acquisition. The main point of contention in Austria is at what point in time the `contract in rem` is concluded: at the same time as the underlying obligation or at the time of transfer? This question was primarily raised when dealing with special issues and more or less en passant, but was never subjected to an independent investigation. Moreover, the fact that the `contract in rem` is necessary at all is hardly ever questioned. A general basic research on the topic is particularly urgently needed against the background of a forthcoming new codification of the ABGB property law. The project will examine, among other things, to what extent arguments from the Swiss, Dutch and Spanish literature can be used for the Austrian legal situation, since the principle of `causal tradition` prevails there as well. The DCFR and the considerations on which it is based can also provide help in understanding, since the international experts have also opted for such a model. The project questions not only the point in time at which an `agreement in rem` is required, but also, upstream, whether the concept of a `contract in rem` is compatible with the basic values of Austrian civil law. The main objective is a survey and critical appraisal of the Austrian legal situation with regard to the requirements for the acquisition of rights in rem de lege lata, with special consideration of the history of dogma and comparative law. An outlook on a new codification de lege ferenda in accordance with the values of Austrian civil law will also be undertaken. The project is being carried out by Dr. Lisa Isola, who has worked at the Universities of Vienna and Linz and has additionally gained numerous international experience. Her main research interests include Roman law and the history of private law, civil law and comparative law.