This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
139 See Stubenrauch, "Kommentar" zu Sec. 1161; Civil Code Sec. 1313.
140 Edition of 1908. "Kommentar" zu Sec. 440. This section reads: "Where the owner grants the same real property to two persons, it becomes the property of him who has first applied for the registration of title."
141 Many owners of actually divided parcels of land are registered merely as coowners of larger undivided tracts.
According to a decision of the Supreme Court,143 the lessor is not guilty of a disturbance of quiet enjoyment of the premises leased, where, in order to protect his lien upon the chattels found on the premises, he prevents the lessee from removing his furniture from the premises; and this is so even if the rent is not yet due, for he possesses a lien, and his act is not unlawful. It is true that this decision goes pretty far, yet it will probably be generally recognized as good law; for ordinarily the premature removal of the furniture is likely to have no purpose but that of cheating the lessor out of his rent. If, however, we were to imagine the lessor of a farm preventing his tenant from selling the crop and removing it for that purpose, we should undoubtedly find against him, although the same sort of lien provided by Sec. 1101, Civil Code, would apply here also. The difference, however, is found in the economic relation. In tenant-farming it is the normal course for the tenant to pay the rent out of the proceeds of the crops sold. The court will avoid a disturbance of the normal course of an economic process. Now the different treatment of this case would take the form of a different projection of the term "unlawful." Beyond doubt we should find this necessary element of disturbance of quiet enjoyment present in the case of the lessor of a farm, as we should in the case of the lessor of a store who should take it into his head to keep his lessee from selling his goods.
142 In this form, the rule implies a presumption that the person first registering was the dishonest one. That, however, is a "petitio principii," for the question is still to be decided whether the first, or physical, new owner, or the new record owner has the better right, and consequently whose acts are unlawfully injurious to the other.
143 Gerichts-Urteil 459, neue Folge, Jan. 3, 1899.
It is interesting to note that the courts located in commercial centers are somewhat stricter than those in country districts, in enforcing the principles of the Commercial Code regarding the duties of vendees asserting claims for defects in merchandise delivered where the sale was effected at long range.
A landowner had applied to the credit institute at Z. for a loan of 20,000 crowns at 6 per cent for three years on first mortgage upon his farm, and the application had been accepted. In the meantime the current rate of interest had fallen, and he succeeded in obtaining the principal elsewhere at 5 per cent. He notified the credit institute at once that he would not need the loan and released-the bank from its agreement. The management replied that he was under obligation to take the loan at 6 per cent. We may assume that the decision of this issue will depend on whether the "apparent purpose" of this loan, at the time when the preliminary agreement "de mutuo dando (vel accipiendo?)" was made, could no longer be accomplished on account of a change in the surrounding circumstances ("clausula de rebus sic stantibus"); or perhaps generally on what the legal nature of that application for a loan may be. Who could fail to see that an important factor in coming to a decision will be the notion we have of the economic nature of a credit institute? The more we keep our eye on its economic function of providing and cheapening credits, the more shall we be inclined to deprecate an attempt to force anybody into accepting a loan. We shall then hold that it was the intention of the parties to give the landowner an opportunity to obtain capital cheaply, and that this purpose could no longer be accomplished after the circumstances had changed. However, we shall be inclined to decide the opposite way the more we look upon a credit institute, from the point of view of private economics, as a legal person having for its purpose private gain; and we shall do so still more if we allow ethical considerations to influence us, as for instance in a case where there is, instead of the credit institute, a woman without business experience, who was delighted to accept the offer of the landowner because thereby she was relieved of the necessity of finding an investment for her capital.
The formal method, however, by which these economic considerations, or rather the value judgments relating thereto, creep into our decision, although we may never become conscious of the reasons therefor, will be found in the projection of the concept "purpose of the preliminary agreement" upon these considerations during the process of ascertaining the intention of the parties.
There is still another separate point to be mentioned here. We have already spoken above about the close connection of law with the organization of the State. In the name of the State legal rules are formulated; it is the State that administers the law through its agents. This being their mutual relation, we cannot conceive that it would ever become necessary by reason of a defective formulation to apply a legal rule in such a manner as to work injury to the vital interests of the State itself. Yet that might happen quite easily on the strength of mere logical deductions without regard to this danger. Rather, it would seem that even without an explicit provision to that effect there is an inherent presumption in every formulated rule of law that it will not injure the State itself. As a matter of fact we can see that the conditions of life'within the State are taken into consideration, even in private law where there is the least necessity of fearing this danger.144