Handwriting 1914, Lecture Over Familienfideikommisse, Graf From Oeynhausen

You are bidding on one handwritten essay from 1914.

"Lecture on family entails. Count Oeynhausen."

The first page with annotation: "Lecture on family. Fideikommisse held 1914 Feldjäger Casino. Gf. O."

Scope:Title page + 25 written pages (33 x 21 cm).

With some handwritten corrections at the end.

The author is probably Falk-Arnd Graf von Oeynhausen (* 31. March 1883 in Celle; died 5. December 1954 in Reelsen); in any case, the lecture was among documents about Castle Reelsen (Bad Driburg). At his marriage in 1911, he was also a "lieutenant in the mounted Feldjägerkorps in Berlin."

Condition: Title page loose and with edge damage; the other sheets with partly larger tears in the fold. Paper slightly browned. BPlease also note the pictures!

Internal note: Oeynhausen folder XVI, 17-35

About the Family Fideikommiss (source: wikipedia):

The family entail (Latin fidei commissum, "to be left in trust [hands]") is an institution of inheritance and property law, according to which the assets of a family, mostly property, should be preserved forever by endowment and only one family member at a time, the entail owner, held the right of usufruct. This is to be distinguished from the private property of a family member (the sovereign), the casket, which was subject to his free disposal during his lifetime and after his death.

The family fideikommiss is close to fiefdoms, family estates and family foundations.

Definition: The Familienfideikommiss was a special asset of a family (upper owner), which remained undivided in the hands of a family member (beneficial owner). The owner only received the income from the property at his free disposal. Executions on the property due to the owner's debts were excluded. As a result, the financial basis for a family and its social position remained secure, even in the event of bankruptcy. The entailed commission was based on a legal foundation – for example through a testamentary provision; the order of inheritance (usually primogeniture) was determined by the donor.

The following statement, formulated in the style of the time, can be found in the 19th Century to:

"[An entail is] after the rom. Rights of a testator to determine that his heir shall surrender a single thing (singular fideicommiss or legatee) or part or all of the inheritance (universal fideicommiss) to another, either immediately or after a certain period of time, even if certain conditions are met. The heir who had to cede the inheritance was called fiduciarius, the recipient fideicommissarius. Under Emperor Vespasian it was decreed that the fiduciar was allowed to keep a fourth part of the inheritance for himself. […] The universal fideicommisse are now rare and the singular fideicommisse are treated like legacies. Very different from this are the new Fideikommisse (Fideikommisse successiva), ie endowments, by which a body of property is declared inalienable and the order is prescribed according to which the members of a family or others who are called to do so should follow one another in the enjoyment of this body of property. In the case of entails of this kind, the Fiduciar has no claim to a fourth part upon publication. According to many state laws and by virtue of general principles, the establishment of these always requires the permission of the state, since if they were to occur too frequently, they would interfere with all relations of the commonwealth in a very disruptive way.”

The family fideikommiss was of a purely private law nature and was thus to be distinguished from (allodified) fiefs, which also had features under public law.

The Fideikommiss differs from the foundation in the true sense in that it is not a legal entity, but the property of the respective owner. However, it is not free property, but is bound by the established rules of succession (order of succession), so in the event of death it was not part of the general inheritance.

Structure of the family entails: A family entails an order by the testator by virtue of which a part of the estate is separated from the rest with the effect that the separated part of the estate is legally divided into a supreme and a usufructuary property. Only one family member was entitled to ownership. The family as a whole retained supreme ownership. According to this, whoever was the beneficiary of the family fideikommiss was neither at disposal nor authorized to encumber the property (tied assets). The beneficiary of the family fideikommiss could not freely dispose of his property after death.

The pecuniary fate of the usufruct of the tied assets was determined by the succession order of the foundation deed. The founder of the family entails could choose between seniors, majors, minors and primogenitures. A special feature was the female inheritance, which only existed in certain areas, for example in Mecklenburg under the law of maiden inheritance, and in Austria (where female inheritance was permitted in principle since the Pragmatic Sanction of the Habsburgs).

Only such items could be dedicated to the family Fideikommiss, which were connected with agriculture, animal husbandry and the like, and which were not subject to manorial rule. Mansions and similar buildings could be added to the family entails, as could family archives and libraries.

Socio-historical significance: The family entails were used to preserve the family wealth of noble families over generations. Palaces, castles and mansions with the associated agricultural and forestry operations were often tied to family entails. They were thus an important tool of the aristocratic family's large landed estates.

Above all, they served to provide financially for noble sons, who held poorly paid but prestigious and influential offices in the state and army, with the proceeds from the family fortune (apanagen). At the same time, however, through ownership by the head of the family, they strengthened the cohesion of the noble houses, both socially and economically, as a late modern form of domestic power without fragmentation through inheritance. In the high industrialization of the 19th At the beginning of the 20th century, they also reached a peak in importance because land is considered a safe investment in times of upheaval, and the construct secured the preservation of the noble families.

in the 19th In the 19th century the family entails came under criticism because they could not participate in the exchange of goods due to the ban on their disposal and thus slowed down the growth of the national product. Since they were also subject to a ban on encumbrance, they could also not be used as real estate loan collateral. The ban on encumbrance also hindered economic freedom of movement. Furthermore, the family entails were criticized as a special right of the nobility. In addition, the family entails were felt to be too restrictive, also with regard to freedom of ownership. Through the family entails, the “cold hand” of the testator was able to direct the fate of the property for generations without the participation of the family holding the property.

In addition, entails fell into disrepute when they were used as a power-political instrument by the former manors after the abolition of serfdom (peasant liberation), for example to create large, closed forest and hunting areas. Therefore, as relics of feudalism, they were opposed both by social democracy and later by National Socialism.

Due to the dissolution in Germany and Austria in 1938, the holders, who were now independent owners of the assets of the Fideikommisse, were forced to divide them up within the family as in the case of regular inheritance distribution. At the same time, objects of public interest, in particular large forests and cultural assets - two areas to which the Nazi rulers attached great importance - were subject to special conditions (protective forests and monument protection).

They present a problem for historical research today. While the general archives of the manorial estates, which were subject to the competent courts, are freely accessible today, the family Fideikommiss archives, even if they are deposited in public archives, can only be viewed with the consent of the owners.

History and national affairs: In Roman law, the entailed entail was a testamentary provision that required the heir to transfer all or part of what he had inherited to a third party after a certain period of time - usually in connection with the occurrence of a specific event (e.g. birth or marriage). to resign. Originally, as a purely moral obligation, it could not be sued for, the entailed commission, comparable to the formal legates, could be enforced before the praetor (specifically: praetor fideicommissarius). Classical jurisprudence had developed the entail to counteract laws restricting inheritance. In particular, the Institute directed itself against the Augustan marriage legislation of the lex Voconia, which forbade the appointment of women as heirs.

Germany: With the reception of Roman law in Germany, a need arose to protect the legal consequences of death, which were common in the previously prevailing legal systems, via the male lineage according to parentel from the testamentary and property freedom of common law. It was therefore possible for the testator, as the founder of a family entail, to separate part of the assets and to withdraw them from the Roman legal system of ownership. With regard to family estates, this was already recognized by observance and family agreements when Roman law entered Germany. The family entails developed from wills that contained prohibitions on division and sale. From this the fiction of a successio ex providentia et pacto maiorum (through succession out of prudence and contract of the ancestors) was founded. The legal validity of such orders was derived from the Roman legal entailed substitution and in analogy to the investiture contract. Since it was not only families of the nobility who were able to ban the division and sale of estates, family entails began to appear alongside the family estates.

By the Prussian edict of 9. October 1807 a dissolution of a family entail was approved by family resolution. In this way, the family was able to revoke the ordinances that the founder of the family entails had left to subsequent generations and to restore their full freedom of disposal and testamentary rights over the assets. In the parts of Germany occupied by Napoleon I, the family entail was completely abolished or severely restricted. Since the Congress of Vienna, however, family entails have again been permitted there.

Since the abolition of the manorial rule in Prussia, the paradoxical situation arose that, because of the edict of 1807, on the one hand family entails could be dissolved by family resolution, but on the other hand every farmer could establish a family entail. On the one hand, in order to maintain the supply function of the family entails, the tied assets had to yield a minimum income. On the other hand, in order not to withdraw too much wealth from economic transactions, the yield was limited to a maximum.

The Paulskirche constitution of 1848 already called for the dissolution of the family entails. With the entry into force of the Civil Code on 1. On January 1, 1900, the civil legal entity was introduced in the German areas that comprised the Empire. In style of. 59 of the Introductory Act to the Civil Code remained unaffected by the state law on family entails. Since the Weimar Imperial Constitution came into force, the aim was once again to liquidate the tied assets.

After the November Revolution, the privileges of the nobility were abolished. The family entails should also, according to Art. 155 Weimar Constitution of 1919. This did not have to be done in one instant step, the resolution could be done over time. The specific implementation was carried out by state law. In Prussia these were the Family Goods Ordinance of 30. December 1920 and the compulsory dissolution ordinance of 19. Nov 1920. Thereafter, the family entails could be kept until the death of the owner on January 1st. January 1921 and should then be dissolved. Preferably, this dissolution should be done on a voluntary basis by agreement of all entitled family members (family union), but it could also be ordered. For this purpose, dissolution offices for family estates were created, which had judicial powers. In 1935, these were converted into entail senates at the higher regional courts (laws to standardize the resolution of entails). The arguments in the family about the modalities of the dissolution and the preservation of the property could drag on for years.

In 1938 the clean-up regulations (which are still valid in Germany today) were issued. The law on the expiry of family entails and other tied assets of 6. July 1938 and the associated ordinance of 20. March 1939 regulated the further fate of the tied assets. Accordingly, the Fideikommisse should expire January 1939; However, in order to regulate claims by family members and other circumstances involved in the entailed entail, a blocking period was set; a final dissolution should only become legally effective when the so-called Fideikommiss dissolution certificate is issued. Due to the war conditions, the blocking periods later had to be postponed indefinitely. After the Second World War, therefore, there were still isolated assets with the status of entails.

The rights which were established by the repealed provisions of the Fideikommisse or on their basis have not been affected by the repeal. This also applied to registered mortgages, money, securities or assets managed in their entirety by trustees.

Even today, there is still a special competence of a senate in some higher regional courts in Germany (e.g. the Bavarian higher regional courts, the OLG Frankfurt and the OLG Jena) with regard to legal disputes relating to entails. At the Federal Court of Justice, the V. Civil Senate is responsible.

For the 23rd On November 1, 2007, the Law on the Cancellation of the Fideikommiss Dissolution Right was enacted, which is intended to complete the dissolution process.

Austria: In Austria, the Fideikommisse according to §§ 618 to 645 ABGB, JGS No. 946/1811, regulated.

They were still at the end of the 19th At the beginning of the 19th century the dominant tool of the large landowners, around 1895 the 297 families who had set up an entailed estate owned 1.2 million hectares of land (out of a total of 30 million hectares and 8.7 million hectares of large estates including the church and the bourgeoisie).

In 1918/19 the abolition in principle was discussed but not implemented. Only a few important family entails and funds of the imperial house were abolished and nationalized with the Habsburg Law (§ 6 para. 2). The distribution to the successor states of the monarchy was regulated by a state treaty of 1924.

With the connection, the German law on the expiry of family fideikommisse (FidErlG) together with the implementation regulation (DVFidErlG) came into force on 1 January 2018. October 1938 in force, and thus retrospectively the formal repeal in the Weimar Constitution of 1919. This decision is still valid today. The Higher Regional Court of Vienna was designated as a court of first instance as a special court.

The FidErlG itself was repealed as obsolete with the 1999 federal law adjustment. Today, questions of entails only play a role in isolated cases, such as entries in the land register.

Switzerland: In 2011 there were around twenty entails in Switzerland, including the entailed entailed estate at Altenklingen Castle founded in 1586 by Leonhard Zollikofer (1529–1587) and his nephews of the Georg and Laurenz lines. However, the founding of new entails is no longer permitted.

Great Britain: In the United Kingdom, the entailed commission was abolished in 1925.

Sweden: In Sweden there are still about ten entails of noble families, which have been extended on application since the 1960s.

Subsequent institutions: With the dissolution in Germany and Austria, the Fideikommisse became free property in the hands of the last owner.

As before, a testator can legally enforce his interest in keeping the estate assets in the family:

In German law, he can partially achieve this by ordering a preliminary inheritance. However, the pre-inheritance is limited to a period of 30 years. However, this time limit does not apply in the frequent case in which the subsequent heir occurs with the death of the previous heir and the subsequent heir was born before the death of the original testator.

Also with the establishment of foundations (family foundation under German law, private foundation under Austrian law) or family property companies (Germany) or general real estate management companies and agricultural and forestry operations, and the registration of usufruct rights in favor of or participation of individual family members, and with the granting of reserved rights of first refusal , this goal can be partially achieved.