BGB AT PLAC WOLNOŚCI

I obtain an acquittal in a criminal case thanks to … the German Civil Code.

In a modern trial, the content of a right is not subject to proof and cannot be the subject of a party’s request for evidence. However, there are exceptions to this rule. It may happen that a Polish court has jurisdiction to hear a case in which an element of foreign law appears. In such a case, the content of the foreign law may and even should be subject to proof in an appropriate manner.

BGB – Bürgerliches Gesetzbuch – is the Civil Code of Germany. Plac Wolności – is the address of the Katowice district court.

A seemingly trivial, but in fact very interesting case came to me: a criminal case with a civil plot. A.G., who at one time was a successful businessman, came to me as a client. The case pending before the Katowice court was the result of the client’s business activities.

He was charged with misappropriation of property – an act under Article 284 of the Criminal Code. The prosecutor pointed out that years ago, the client had entered into a “transfer of ownership by security” agreement with a German contractor. According to the prosecution’s thesis, payment for goods delivered from Germany was to be secured by a pledge on passenger cars that the debtor had previously purchased for use in a car dealership. When the original contract was fulfilled, for reasons beyond the client’s control, payment did not take place on time. The German counterparty, wishing to realise the security, took steps to satisfy itself from the sale of the cars indicated in the security agreement. This proved impossible for reasons beyond the client’s control.

So many facts, which, incidentally, were not disputed. What “only” remained was the question of their legal assessment. An examination of the “transfer of ownership by way of security” agreement showed that the parties (German and Polish) chose German law as the correct law to assess the obligations incurred under it. In defining the object of the security, the parties did not mention specific vehicle units, without marking them with individual characteristics such as body number, serial number or other. They merely specified that a certain number of cars of particular makes and models were the subject of the security. This meant that movables were taken to be the object of the transfer of title, but marked not “as to identity”, but “as to kind”. Consequently, the question that had to be answered was whether there had been a transfer of ownership of the vehicles to the German counterparty at the time the security agreement was concluded, much less a transfer of the vehicles (neither directly nor indirectly, by way of illustration through the surrender of keys or documents). However, was such surrender and transfer of the vehicles (referred to by lawyers as a ‘transfer of possession’) necessary at all? Whether it occurred was the key issue: one cannot misappropriate one’s own item, but only that of a third person. This assessment had to be made pursuant to the relevant standards of German law, since it was the intention of the parties that the German law be applicable to the agreement. At the time, I remembered from my studies (thanks to a textbook on property law by Professor Jerzy Ignatowicz) that under German law, the transfer of ownership of things specified “as to type” was contingent on the transfer of possession. I applied for the admission of evidence from hearing an expert witness – a specialist in foreign law (in this case German law). At a subsequent hearing, the court heard from the expert – a professor at the University of Silesia, whose research interests included a comparative analysis of European property law systems. The expert witness confirmed that, under German law, there had been no transfer of ownership of the cars since these had not bee surrendered. The agreement valid, but providing that until the transfer of possession of the vehicles which were the subject of the ‘transfer of ownership’ (which did not take place), it did not have the effect of transferring their ownership to the German counterparty. Respectively, the client, by disposing of the vehicles (he had the right to do so), could not have committed misappropriation. The case was acquitted. As it turned out – not for the first time, by the way – the essence of the problem remained in a place that the prosecutor did not notice. The voluminous files of the years-long investigation returned to a place they should never have left: the public prosecutor’s office.