Last Updated on June 28, 2021 by LawEuro
German Civil Code (BGB) German law
Subchapter 2
Management of the marital property by the husband or the wife
Section 1422
Subject matter of right of management
The spouse who manages the marital property is entitled in particular to take possession of the things belonging to the marital property and to dispose of the marital property; he conducts legal disputes that relate to the marital property in his own name. The other spouse is not personally obliged by the management acts.
Section 1423
Disposition of the marital property as a whole
The spouse who manages the marital property may agree only with the consent of the other spouse to dispose of the marital property as a whole. Where he has agreed without the approval of the other spouse, he may perform the duty only if the other spouse consents.
Section 1424
Disposition of plots of land, ships or ships under construction
The spouse who manages the marital property may agree only with the consent of the other spouse to dispose of a plot of land that is part of the marital property; in addition, he may agree to such a disposition only with the consent of his spouse. The same applies if a registered ship or ship under construction is part of the marital property.
Section 1425
Donations
(1) The spouse who manages the marital property may make gifts of objects from the marital property only with the consent of the other spouse; where, without the approval of the other spouse, he has promised to make gifts of objects from the marital property, he may fulfil this promise only if the other spouse consents. The same applies to a promise of donation that does not relate to the marital property.
(2) An exception applies to gifts that are made to comply with a moral duty or to show consideration for decency.
Section 1426
Substitution of the approval of the other spouse
Where a transaction that under sections 1423 and 1424 may be entered into only with the consent of the other spouse is necessary for the proper management of the marital property, the family court, on application, may substitute the approval of the other spouse if the latter refuses it without adequate cause or is prevented by illness or absence from making a declaration and delay entails risk.
Section 1427
Legal consequences of lack of consent
(1) If the spouse who manages the marital property enters into a legal transaction without the necessary consent of the other spouse, the provisions of section 1366 (1), (3) and (4) and of section 1367 apply with the necessary modifications.
(2) A contract may be revoked by the third party until the ratification. Where he knew that the spouse was living under community of property, he may revoke only if the spouse untruthfully claimed that the other spouse had consented; in this case too, he may not revoke if when he entered into the contract he knew that the other spouse had not consented.
Section 1428
Dispositions without approval
If the spouse who manages the marital property disposes without the necessary approval of the other spouse of a right that is part of the marital property, the other spouse may assert the right against third parties; the spouse who manages the marital property need not cooperate in this.
Section 1429
Emergency right of management
Where the spouse who manages the marital property is prevented by illness or absence from entering into a legal transaction which relates to the marital property, the other spouse may undertake the legal transaction if delay entails risk; when doing this, he may act either in his own name or in the name of the managing spouse. The same applies to conducting a legal dispute which relates to the marital property.
Section 1430
Substitution of the approval of the managing spouse
If the spouse who manages the marital property refuses, without adequate cause, his approval to a legal transaction which the other spouse has to undertake in order to properly attend to his personal affairs, but which he cannot without this approval undertake with effect for the marital property, the family court may, on application, substitute the approval.
Section 1431
Independent trade or business
(1) If the spouse who manages the marital property has consented to the other spouse operating an independent trade or business, his approval of such legal transactions and legal disputes as the business operations entail is not required. Unilateral legal transactions which relate to the trade or business are to be entered into with the spouse who operates the trade or business.
(2) If the spouse who manages the marital property knows that the other spouse is operating a trade or business, and if he has filed no objection to this, this is equivalent to consent.
(3) Against third parties, an objection and the revocation of the consent are effective only under section 1412.
Section 1432
Acceptance of an inheritance; refusal of offer to enter into contract or of donation
(1) If an inheritance or a legacy has accrued to the spouse who does not manage the marital property, only he is entitled to accept or disclaim the inheritance or the legacy; the approval of the other spouse is not necessary. The same applies to the waiver of the compulsory portion or to the equalisation of accrued gains, and also of the refusal of an offer to enter into a contract or of a donation.
(2) The spouse who does not manage the marital property may file an inventory of an inheritance that accrues to him without the approval of the other spouse.
Section 1433
Continuation of a legal dispute
The spouse who does not manage the marital property may without the approval of the other spouse continue a legal dispute that was pending at court at the beginning of the community of property.
Section 1434
Unjust enrichment of the marital property
If a legal transaction that a spouse undertakes without the required approval of the other spouse enriches the marital property, the enrichment is to be returned from the marital property under the provisions on unjust enrichment.
Section 1435
Duties of the managing spouse
The spouse must manage the marital property properly. He must inform the other spouse of the management and, on request, give him information on the status of the management. Where the marital property is reduced, he must compensate the marital property if he is responsible for the loss or has caused it by a legal transaction which he undertook without the necessary approval of the other spouse.
Section 1436
Managing spouse under guardianship or custodianship
If the spouse who manages the marital property is under guardianship or if the management of the marital property falls under the area of responsibilities of his custodian, his guardian or custodian must act on his behalf in the rights and duties which arise from the management of the marital property. This also applies if the other spouse is appointed guardian or custodian.
Section 1437
Obligations of the marital property; personal liability
(1) The creditors of the spouse who manages the marital property and, to the extent that sections 1438 to 1440 do not provide otherwise, the creditors of the other spouse in addition may require satisfaction from the marital property (marital property obligations).
(2) The spouse who manages the marital property is also personally liable as a joint and several debtor for the obligations of the other spouse which are marital property obligations. The liability lapses on the termination of the community of property if the obligations, as between the spouses, fall on the other spouse.
Section 1438
Liability of the marital property
(1) The marital property is liable for an obligation arising from a legal transaction that is entered into during the period of community of property only if the spouse who manages the marital property enters into the legal transaction or if he approves it or if the legal transaction is effective for the marital property without his approval.
(2) The marital property is liable for the costs of a legal dispute even if the judgment is not effective in relation to the marital property.
Section 1439
No liability on acquisition of an inheritance
The marital property is not liable for obligations that arise as a result of the acquisition of an inheritance if the spouse who is an heir does not manage the marital property and acquires the inheritance during the period of community of property as reserved property or as separate property; the same applies on the acquisition of a legacy.
Section 1440
Liability for reserved or separate property
The marital property is not liable for a personal obligation of the spouse who does not manage the marital property that arises during the period of community of property as the result of a right that is part of the reserved property or the separate property or of the possession of a thing that belongs to such property. However, the marital property is liable if the right or the thing is part of a trade or business which the spouse operates independently with the consent of the other spouse, or if the obligation is part of the burdens of the separate property that are customarily paid from the income.
Section 1441
Liability as between the spouses
As between the spouses, the following marital property obligations fall on the spouse as whose personal obligations they arise:
1. the obligations arising from a tort which he commits after the commencement of the community of property, or from criminal proceedings that are conducted against him with regard to such an act;
2. the obligations arising from a legal relationship that relates to his reserved property or his separate property, even if they arose before the commencement of the community of property or before the time at which the property became reserved property or separate property;
3. the costs of a legal dispute about one of the obligations set out in nos. 1 and 2.
Section 1442
Obligations of the separate property and of a trade or business
The provisions of section 1441 nos. 2 and 3 do not apply if the obligations are part of the burdens of the separate property which are customarily paid from the income. Nor do the provisions apply if the obligations arise from the operation of a trade or business that is conducted for the account of the marital property or as the result of a right or of the possession of a thing that belongs to such a trade or business.
Section 1443
Costs of litigation
(1) As between the spouses, the costs of a legal dispute that the spouses conduct against each other are borne by the spouse who is to bear them under general provisions of law.
(2) If the spouse who does not manage the marital property conducts a legal dispute against a third party, the costs of the legal dispute, as between the spouses, are borne by that spouse. However, the costs are borne by the marital property if the judgment takes effect against the marital property or if the legal dispute relates to a personal matter or a marital property obligation of the spouse and the disbursement of the costs is appropriate in the circumstances; section 1441 no. 3 and section 1442 are unaffected.
Section 1444
Costs of the advancement of a child
(1) If the spouse who manages the marital property promises or grants an advancement to a child of the spouses, then as between the spouses he bears the costs of the advancement to the extent that they exceed the degree that is appropriate for the marital property.
(2) If the spouse who manages the marital property promises or grants an advancement to a child that is not a child of the spouses, then as between the spouses the father or mother bears the costs of the advancement; for the spouse who does not manage the marital property, however, this applies only to the extent that he approves or the advancement does not exceed the degree that is appropriate for the marital property.
Section 1445
Equalisation between reserved property, separate property and marital property
(1) If the spouse who manages the marital property applies marital property to his reserved property or his separate property, he must reimburse to the marital property the value of the property applied.
(2) If he applies reserved property or separate property to the marital property, he may require compensation from the marital property.
Section 1446
Due date of the equalisation claim
(1) Whatever the spouse who manages the marital property owes to the marital property he need pay only after the termination of the community of property; whatever he may claim from the marital property he may claim only after the termination of the community of property.
(2) Whatever the spouse who does not manage the marital property owes to the marital property or whatever he owes to the reserved property or separate property of the other spouse he need not pay until after the termination of the community of property; however, he must discharge the debt before this to the extent that his reserved property and his separate property are sufficient for this.
Section 1447
Action of the non-managing spouse for termination
The spouse who does not manage the marital property may institute proceedings for termination of the community of property
1. if his future rights may be substantially endangered by the fact that the other spouse is incapable of managing the marital property or abuses his right to manage the marital property,
2. if the other spouse has violated his duty to contribute to the family maintenance and a substantial endangerment of the maintenance is to be feared in the future,
3. if the marital property is over-indebted by obligations that arose as personal obligations of the other spouse to such an extent that a later acquisition by the spouse who does not manage the marital property is substantially endangered,
4. if the management of the marital property falls under the area of responsibilities of the custodian of the other spouse.
Section 1448
Action of the managing spouse for termination
The spouse who manages the marital property make take action for termination of the community of property if the marital property, as a result of obligations of the other spouse which fall on the latter as between the spouses, is over-indebted to such a degree that a later acquisition is substantially endangered.
Section 1449
Effect of the judicial termination decision
(1) When the judicial decision becomes final and absolute, the community of property is terminated; separation of property applies for the future.
(2) Against third parties, the termination of the community of property is effective only under section 1412.
Leave a Reply