Eine dogmenhistorische Untersuchung zur privatrechtlichen Erfassung von Vermögenserträgen
I. The doctrine of fructus in the 19th century The discussion regarding the distribution of yields in the 19th century led to three essential theories. 1. Despite all disagreements among their representatives, the predominant Bestimmungslehre established a first serious attempt to develop a common ter- minology for the doctrine of fructus. Two elements constitute the common ground of this theory. On the one hand, the representatives agree in the point that only those yields gained in conserving the substance of the fruit-producing object (salva rerum substantia) can be considered as fructus. Thus, the roman principle of substantiality as it is described in D. 7, 1, 1 becomes the fundamen- tal point of this doctrine. On the other hand, the representatives of this doctrine accentuate that the yields have to be obtained according to the purpose (Bestim- mung) of the fruit-producing object. This second requisite is deduced, pursuant to Puchta, from the ancient dispute on whether the child of a slave, partus ancil- lae, or the excessive lumbering, silva caedua, can be considered to be in fructu. According to this idea, the Bestimmungslehre succeeds in finding at least a ter- minological solution for most types of yields on assets in Roman law. 2. Anyhow, it has to be admitted that the predominant doctrine’s approach leads to a multitude of complications that are discussed not only by its adher- ents, but also massively criticized by its opponents. The two most significant of the opponents are Heinrich Robert Göppert and Leo von...
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