Ausgabejahr 2026
Erscheinungsdatum 14.01.2026

Nr. 010/2026

No. 10/2026

The Fifth Civil Panel of the Federal Court of Justice, responsible, among other things, for claims relating to the possession and ownership of movable goods, is required to rule on the surrender of an archive that comprehensively documents the persecution of a family during the National Socialist era due to their membership of the religious community of Jehovah’s Witnesses. In this connection, the legal question to be clarified is whether the loss of possession of a movable good can be “remedied” by the rightful owner subsequently declaring his or her consent to the situation of possession resulting from the loss or by legitimising it in a similar way.

Facts and Circumstances:

The claimant, an association of the religious community of Jehovah’s Witnesses in Germany, is the heir of the testator, who died in 2005. She had comprehensively documented the persecution of her family on account of their membership of the Jehovah’s Witnesses from the National Socialists’ assumption of power to her own arrest on 25 October 1944 and had archived a large number of related documents. In 2008, the Federal Republic of Germany, the defendant, requested the loan of the archived documents from the claimant for a museum exhibition. The claimant referred the defendant with its request to the testator’s brother, who possessed the archive at that time; it has not been clarified how he obtained possession. In 2009, the testator’s brother sold the archive to the defendant, which is currently exhibiting it in the Museum of Military History in Dresden.

Previous Proceedings:

Based on the assertion that the archive belongs to the estate and the testator’s brother unlawfully took the archive from the claimant (the heir) after the testator’s death, the claimant calls for the defendant to surrender the archive. It did not succeed in achieving this aim in the Lower Courts. It is pursuing its claim through an appeal on points of law permitted by the Higher Regional Court.
The Higher Regional Court, whose Ruling was published in the MDR – Monatsschrift für Deutsches Recht 15/2025, p. 985, did not address the question of the original ownership and possession of the archive. It assumes that the defendant in any case acquired ownership of the document archive in good faith in accordance with section 932 of the German Civil Code, even if the testator’s brother had taken it from the claimant unlawfully. It is true that section 935 of the German Civil Code precludes the acquisition in good faith of things that have been lost. Such a loss can be “remedied”, however, by the rightful owner subsequently declaring his or her consent to the situation of possession resulting from the loss or by legitimising it in a similar way. To that effect, the claimant legitimised the direct possession by the testator’s brother, at least after the fact, since it consciously left him in possession and tolerated that situation of possession. By virtue of the fact that the claimant referred the defendant to the testator’s brother with regard to the request for a loan, it also created the legal appearance that the brother was in legitimate possession of the archive. Finally, the claimant was not able to prove that the defendant did not make the purchase in good faith.
In the claimant’s view, it is not legally possible to legitimise after the fact the one-time occurrence of loss. In its view, the appeal court is also incorrect in assuming that the defendant made the purchase in good faith; it claims in particular that in view of the archive’s historical significance, the State has increased obligations with regard to investigating the ownership situation.

Lower courts:
Regional Court Bonn – judgment of 19. April 2024 – 1 O 311/22
Higher Regional Court Köln – judgment of 16. April 2025 – 18 U 57/24

Relevant legal provisions:

Section 932 (1) sentence 1, (2) German Civil Code
(1) As a result of an alienation carried out under section 929, the acquirer becomes the owner even if the thing does not belong to the alienor, unless the acquirer is not in good faith at the time when under these provisions they would acquire ownership. […]
(2) The acquirer is not in good faith if the acquirer is aware, or is unaware as a result of gross negligence, that the thing does not belong to the alienor.

Section 935 (1) sentence 1 German Civil Code
(1) The acquisition of ownership under sections 932 to 934 does not occur if the thing was stolen from the owner, is missing or has been lost in any other way. […]

Karlsruhe, 14. Januar 2026