Countertransference

Definition and Meaning of Re-Transfer

Die Re-transfer in legal terms, refers to the transfer of a legal object—most commonly a property, claim, or asset—by a recipient (transferee) back to the original entitled party (transferor). This re-transfer regularly occurs following revocation, contestation, upon the occurrence of a resolutive condition, pursuant to statutory regulations, or as part of specifically regulated unwinding arrangements.

Re-transfers are important in many areas of law, especially in civil law, inheritance law, property law, corporate law, as well as in governmental restitution and compensation law. They often involve complex legal and factual circumstances and are frequently associated with subsequent legal issues such as unwinding, compensation for use, and settlement of follow-up transactions.

Civil Law Aspects of Re-Transfer

Re-Transfer in Connection with Contracts

Re-transfer may arise in contracts for different reasons. Examples include:

• Withdrawal: If a contract is effectively unwound (e.g., pursuant to §§ 346 et seq. BGB), the re-transfer of the received item is an essential element of the unwinding.
• Contestation: If a party declares a contestation under §§ 119 et seq. BGB, the contract is considered void from the outset. The re-transfer serves to return the performances already received to the original asset level (§ 812 BGB).
• Resolutive Condition: If a contract is subject to a resolutive condition, re-transfer is required upon its occurrence to restore the original state.
• Revocation: If, for example, a consumer right of withdrawal is exercised, a re-transfer of the received performances takes place in accordance with § 357 BGB.

Re-Transfer in Property Law

In property law, re-transfer refers to the transfer of ownership rights from the current owner back to the original owner. This may occur on the basis of contractual agreements (re-transfer reservation, priority notice for re-conveyance) or by operation of law.

Typical examples include:

• Priority Notice to Secure the Right to Re-Transfer: Pursuant to § 883 BGB, a re-conveyance priority notice may be entered in the land register, which protects the entitlement to re-transfer a property upon the occurrence of certain conditions.
• Contractually Agreed Re-Transfer Rights: In the case of gifts of real estate, a right of re-transfer is often stipulated for the event that certain circumstances occur (e.g., non-use, death of the acquirer before the donor).

Re-Transfer in Inheritance Law

Re-transfer plays a role in inheritance law, particularly when ownership is to be re-transferred to the donor or their heirs following a gift or anticipated succession under certain conditions. This is often structured by way of a contractual right of reclaim or a resolutory condition attached to the ownership right.

Examples:

• Gifts with a Right of Reclamation: If the beneficiary dies before the donor or behaves in gross breach of duty, the gift may be reclaimed pursuant to § 528 BGB (reclaim due to impoverishment of the donor) or by virtue of a contractually agreed right of withdrawal.
• Legacies with a Right of Revocation: Executors can be granted a right of re-transfer in order to preserve the estate, should certain conditions arise.

Re-Transfer in Corporate Law

In corporate law, a re-transfer may be necessary, in particular when unwinding the acquisition of shares, especially in the case of void resolutions or ineffective transfers of company shares. The company then has a claim for re-transfer and, where appropriate, for compensation of uses drawn.

Re-Transfer under Public Law and Restitution Law

Re-Transfer in Asset Legislation

Under German public law, re-transfer is particularly relevant in relation to the Act Regulating Unresolved Property Issues (Vermögensgesetz – VermG) This is important in respect of claims to re-transfer assets confiscated in the GDR. The parties entitled to claim are generally former owners or their legal successors.

• Legal Basis: The Vermögensgesetz provides for re-transfer, provided that there are no grounds for exclusion and no compensation or indemnification has already been received.
• Implementation: The re-transfer is effected by administrative act, often with a variety of ancillary obligations, for example in relation to encumbrances, land register issues, and possession.
• Consequences: In the context of re-transfer, existing rights of third parties—such as tenants or users—are protected by statutory transitional provisions.

Re-Transfer in Case of Erroneous Administrative Acts

If an administrative act which had previously transferred a right (e.g., granting civil claims by a public authority) is revoked, a re-transfer of the benefit received without legal grounds may be demanded according to the principles of unjust enrichment.

Practical Execution of Re-Transfer

Notarial Certification and Land Register Correction

For properties, re-transfer is regularly carried out through notarial certification and subsequent correction of the land register. In this process, all statutory and contractual requirements must be examined, including any existing priority notices and encumbrances.

Tax Aspects

The re-transfer of assets may trigger tax consequences, such as real estate transfer tax, gift tax, or income tax. When structuring a re-transfer, tax treatment should be considered at an early stage, to avoid double taxation and unintended liabilities.

Special Cases and Related Terms

Distinction from Unwinding (Rückabwicklung)

The re-transfer is a specific element of unwinding, in which all received benefits must be returned. While unwinding describes the overall concept, re-transfer is limited to the transfer of the (originally transferred) legal asset itself.

Right to Re-Transfer

A right to re-transfer is understood as the claim resulting from a contract, law, or administrative act to reclaim the transferred asset. This right may be reinforced or secured through priority notices or security interests.

Conclusion

Die Re-transfer is an essential mechanism, anchored in numerous areas of law, for restoring the original legal status. It is found in contract, property, inheritance, corporate, and public law, and encompasses various statutory and contractual arrangements. Implementing a re-transfer requires compliance with formal, substantive, and tax regulations and is regularly associated with further legal and factual consequences.

References (Sample):

• German Civil Code (BGB)
• Act Regulating Unresolved Property Issues (VermG)
• Land Register Code (GBO)
• Literature references: Palandt, Commentary on the BGB; Staudinger, Commentary on the BGB; Munich Commentary on the BGB

Frequently Asked Questions

When can a re-transfer be demanded under German law?

A re-transfer can be demanded under German law whenever the prerequisites for the unwinding of an asset shift are present. This is typically the case, for example, in the context of withdrawal from a contract (§§ 346 et seq. BGB), contestation of a legal transaction (§ 142 BGB), natural restitution in unjust enrichment (§ 812 BGB), or certain contractual arrangements (such as a trust relationship or security agreements). The legal grounds for the right to re-transfer thus depend on the underlying legal relationship in each case. It must be specifically examined whether a formative right has been exercised (e.g., withdrawal or contestation) or rights arising from the rules on unjust enrichment can be asserted. The decisive criterion is that the right to re-transfer is based on either a contractual unwinding relationship, a statutory provision, or a corresponding legal agreement.

What formal requirements must be observed for a re-transfer?

The required form for a re-transfer primarily depends on the original legal transaction and the rule that triggers the unwinding. If the re-transfer relates to real estate, under § 873 BGB the agreement and entry in the land register are required, meaning that in such cases, notarial certification under § 311b BGB is also necessary. For movable items, agreement and delivery (§ 929 s. 1 BGB) are generally sufficient, whereas in the case of company shares, GmbH shares, etc., specific provisions such as notarial certification requirements (§ 15 GmbHG) may apply. In addition, it should be noted that sometimes the same formal requirements apply to the re-transfer as to the original acquisition. Non-compliance with statutory or agreed formalities can render the re-transfer void.

Are there limitation periods for claims to re-transfer?

Yes, claims to re-transfer are generally subject to the standard statutory limitation rules. The regular limitation period is three years from the end of the year in which the claim arose and the creditor became, or without gross negligence should have become, aware of the circumstances giving rise to the claim (§ 195, § 199 BGB). For specific claims to re-transfer, such as defect warranty claims, there may be shorter or longer limitation periods (for example, § 438 BGB for unwinding of real estate purchase contracts). Special limitation rules may apply to proprietary claims or re-transfers under the Vermögensgesetz.

What legal consequences does a re-transfer have for the parties involved?

Legally, a re-transfer generally results in the restoration of the original state, as it existed before the relevant transfer (so-called state before performance or “status quo ante”). This means that the property transferred reverts to the original owner or entitled party. Where applicable, benefits drawn must also be surrendered, and any deterioration, depreciation, or usage advantages must be compensated (§ 346 para. 1, § 818 BGB). For the re-transfer of real estate or company shares, costs incurred during the initial transfer (e.g., notary fees, land register fees, taxes) should also regularly be taken into account, provided there is an obligation or express agreement to bear such costs.

Can rights to re-transfer be excluded in advance?

In principle, the parties may exclude rights to re-transfer wholly or partially by contractual clauses, unless statutory prohibitions oppose this (e.g., in consumer transactions, §§ 305 et seq. BGB, or in unfair agreements under § 138 BGB). However, especially in connection with security transactions (e.g., assignment for security, trust relationships, assignment of claims), the obligation to re-transfer upon cessation of the security purpose is often mandatory or arises from the principle of good faith (§ 242 BGB). In such cases, a general exclusion cannot be effectively agreed.

What special features apply to the re-transfer of security transactions?

In the context of security transactions—such as security transfer of ownership or assignment for security—the peculiarity is that the secured party is obliged to re-transfer the security object after fulfillment of the secured obligation. This obligation is regularly part of the security agreement, and, if not explicitly regulated, arises from supplementary contractual interpretation or from § 812 para. 1, sentence 1, alternative 2 BGB. When re-transferring, formal requirements (e.g., written form or notarial certification) must also be observed, as must the requirement of proper re-transfer of the rights to the security provider. Special rules also apply with regard to interim dispositions or third-party interventions that may have occurred in the meantime.

What must be observed when re-transferring company shares?

The retransfer of company shares is subject to its own specific company law and transfer law requirements. Depending on the type of company (e.g., GmbH, stock corporation, partnerships), different prerequisites apply, especially regarding the form (typically notarization required for GmbH shares according to § 15 GmbHG), approval requirements from other shareholders, pre-emption rights, and entries in the commercial register. Furthermore, the effectiveness of the retransfer may depend on whether possible blocking periods, transfer restriction clauses, or other contractual limitations stipulated in the articles of association have been observed. In individual cases, tax implications of the retransfer must also be examined, particularly with regard to the valuation of shares or in cases of gratuitous transfers.

When is a retransfer excluded?

A retransfer is legally excluded if it is prevented by contractual agreements or mandatory statutory provisions, e.g., in cases of loss of rights due to resale to third parties who qualify as bona fide purchasers (§§ 932 et seq. BGB), by expiration of limitation periods, or by arrangements that rule out subsequent rescission or automatic reversal. Retransfer is also impossible if the transferred object has perished or in the case of legal impossibility (e.g., in the event of corporate mergers). In such cases, there is only a claim for compensation or damages, but not for retransfer in the strict sense.