Summary

Subsection 6 (4) of the Estonian General Part of the Civil Code Act sets down the principle of abstraction: The validity of a disposition is not contingent upon the validity of the transaction that requires transfer of the right or obligation. Whether or not the principle of abstraction extends to transactions with intellectual property remains ambiguous. As by their nature intellectual property rights fall under private law, the general principles of private law are extended to them. This means that the provisions of the General Part of the Civil Code Act apply, as general provisions, to intellectual property rights. Hence, the authors of this article believe that one must proceed on the presumption that the principle of abstraction applies in intellectual property law too. However, in the legal literature it has been noted that in the area of intellectual property it is difficult to understand the acknowledgement or denial of the principles of separation and abstraction, on account of the abundance of the work, inconsistency, and lack of conceptual clarity. In view of the current process of codification of intellectual property law, which has among its goals harmonisation of the system of intellectual property with the rest of private law, the authors set out to clarify the relevance of the role and meaning of the principle of abstraction in Estonian intellectual property law. As the principle of abstraction was transposed into Estonian law from German law, opinions expressed in German legal literature and relevant German case law have also been analysed for the purposes of this article.