| Dominating right arising from an obligatory relationship is a particular kind of rights arising from a lasting obligatory relationship, and is a type of“the reinforcement of the obligatory rights”(die Verdinglichung obligatorischer Rechte). It is really not true, as it was said usually, that an obligatory relationship can generate only obligatory rights or personal claims. As this article will set forth, the dominating right arising from an obligatory relationship has also some special characteristics which are typical for property rights (Sachenrechte).Property rights have two special characteristics: the domination (Herrschschaft) and the absoluteness (Absolutheit). After delivering the thing or surrendering the thing for use, the dominator in a lasting obligatory relationship can realize his intention unilaterally upon the thing and need not the cooperation of the obligator. Moreover, the possessor can also protect his possession or his right of possession from anyone’s infringement through certain legal remedies. Therefore, the dominating right arising from an obligatory relationship has also the special characteristics of domination and absoluteness to some extent, and has also some effects of property rights.Therefore, a lasting obligatory relationship can be divided into two phases. Before delivering the thing or surrendering the thing for use, there exist only obligatory rights, but after the so-said delivering or surrendering, there can exist both obligatory and dominating rights in such legal relationship. In contrast to the first phase, the second phase has two special qualities as follows: on one hand, a lasting obligatory relationship has still the classical effects of obligation, such as personal claims; on the other hand, its dominating right may have the effect against a third party. That is to say, such legal relationship can exist between obligee and a third person, and has broken through the traditional scope of obligatory relationships which can only bind obligator and obligee.The dominating right arising from an obligatory relationship is an unusual phenomenon in the civil law system. Although originated from an obligatory relationship, it is protected by the law to some extent as a property right. But it is also should be remembered that, the dominating right arising from an obligatory relationship is still bound by the obligatory relationship and is very different from the property right. |
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