Wiederaufleben von Drittsicherheiten

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Abstract: The reinstatement of third-party collateral has not received much academic attention to date. Previous treatment of this issue has, in relation to many questions, merely led to seemingly apodictic assertions, without taking each systematic, historical context into account. This work provides coherent, dogmatically well-founded reasoning with respect to this set of issues. It scrutinizes prior approaches to this, in particular the differentiation between accessory and non-accessory collateral, resolves issues that have been disputed to date and provides a viable, dogmatic solution. In conclusion, possible contractual solutions are outlined which, contrary to previous approaches, except for tax and accounting law issues, protect the collateral taker as far as possible against good faith acquisition by third parties and can stand up to the strict case law relating to “restrictive security agreements”. This work is aimed at both practitioners and academics.