The German principles of separation and abstraction: do they also apply to licensing law?

Marie-Avril Roux Steinkühler
Jul 16
3 min read

The principles of separation and abstraction are a distinctive feature of German law which does not exist in this form in many other legal systems. In his article ‘Obligation and Disposition in Licensing Law’ (GRUR 2025, 457), Maximilian Becker demonstrates, in particular, that the application of the principle of abstraction in licensing law could pose a problem where the licensee retains the licence granted despite the licence agreement being void.

🧩 What does the principle of separation mean?

The principle of separation means that a legal act is divided into an act of commitment and an act of disposition. The act of commitment (for example, a contract of sale) creates the obligation to perform, whilst the act of disposition gives effect to the obligation itself (for example, the transfer of ownership).

Buying a car is a simple everyday example of this: the contract of sale imposes an obligation to deliver the goods and to pay the purchase price (obligatory act). It is only upon handover of the car that ownership is transferred to the buyer (act of disposition).

🔍 What does the principle of abstraction mean?

The principle of abstraction means that the obligatory act and the dispositive act are independent of one another. For example, if the contract of sale were invalid for any reason, it might nevertheless be the case that the buyer had become the owner of the vehicle.

⚖️ Application to licensing law

In licensing law, the licence agreement constitutes the obligatory act and the actual grant of the trade mark licence constitutes the act of disposition.

The licensee thus acquires an independent right to the intangible asset. The licence is therefore a kind of legal separation from the proprietor’s principal right.

🚨 When the application of the principle of abstraction becomes problematic

According to the principle of abstraction, the commitment and the disposition are legally independent. If the contract subsequently comes to an end, for example through termination, the licence already granted is not automatically revoked. This is why, particularly in the case of simple licences, consideration is given to applying this principle less strictly.

🇫🇷 A look at France: Article 1178 of the Civil Code

It is precisely when compared with French law that the distinctive nature of the German principle of separation and abstraction becomes clear. Whilst German law legally separates the act of commitment from the act of disposition, French law, with certain exceptions, follows what is known as the principle of causality.

Under German law, an act of disposition remains valid in principle even if the underlying contract (obligatory act) is invalid. Termination is therefore not automatic, but occurs separately under the law of unjust enrichment (Sections 812 et seq. of the BGB).

Under French law, by contrast, the nullity of the contract generally also entails the nullity of the transfer of rights in rem (Article 1178 of the Civil Code). Any performance already rendered must be restored. The obligation and the transfer of rights are therefore more closely linked than under German law.

⚖️ Implications for licensing law

Whilst, under the German approach, a licence granted may, in certain circumstances, remain in force despite the nullity of the licence agreement, under the French approach, the transfer of rights itself would generally also be set aside.

💡 Why this separation is nevertheless sensible

Becker also demonstrates that this separation nevertheless offers considerable advantages:

a ‘stronger’ legal position for the licensee (for example, vis-à-vis third parties) despite the contract’s nullity
the parties themselves can specifically define the link between the contract and the licence within the contract (for example, through terms and conditions)

🤝 MARS — IP supports companies in drafting, negotiating and enforcing licence agreements, as well as in implementing cross-border intellectual property strategies between Germany and France.