Transferability affects a large number of subject areas . Legal subjects can be natural or legal persons between whom legal objects or properties are to be transferred. The subject (legal object) is understood in law as a generic term for things , claims , intellectual property rights and property rights , but not for personal and family rights .
areas of expertise
The subject areas concerned with transferability include in particular:
- In general, in legal methodology , transferability means the possibility of applying certain specific legal norms or case law in other areas of law. Such legal questions can be clarified by analogy .
- Special areas of law :
- ID required : The owner of an identity card must at this according to para. 1 PAuswG the custody not give up; the identity card is therefore not transferable.
- Company law : The Federal Court of Justice (BGH) considers the authority of the managing director of a GmbH to make a declaration of intent and the associated responsibility to be non-transferable. As a result, the managing director cannot have his power of representation exercised in its entirety by a third party .
- The transferability of a design right is one of the most controversial legal questions when dealing with design rights. According to German Civil Code (BGB), they are not all independently transferable, only the non- accessory rights such as the right of first refusal , right of repurchase or right of withdrawal .
- Highly personal rights (such as mutual shareholder claims from (2) BGB , copyrights according to (1) UrhG ) or vacation ( (4) TVG , BUrlG ) are not transferable to other persons . A transfer of the vacation to the next calendar year is only permitted under labor law for urgent operational reasons or reasons relating to the employee ( (3) BUrlG). In the case of copyrights, the transfer to other legal entities can take place by way of a license as an individual right of use without affecting the core area of copyright law. sentence 2 BGB (entitlement to service ), (2) BGB ( execution of orders ) and BGB ( usufruct ) are regarded as “in case of doubt non-transferable” . The injunction claim has also been a highly personal right since June 1935, which is why it is non-transferable as such.
- In travel law , the traveler can declare before the start of the journey in accordance with Paragraph 1 BGB that a third party will take over the rights and obligations of the package travel instead .
- Tax law : The pension assets promoted in accordance with EStG or in ff. EStG including its income, the promoted current pension contributions and the entitlement to the allowance are not transferable in accordance with EStG; this also applies to the Riester pension ; see also the main article impoundability .
- The law of obligations knows the transfer of claims / rights in the form of assignment , property law calls the transfer or labor law the transfer of operations . So not only individual things, but also factual aggregates are transferrable. In these legal transactions , the legal entities transfer certain legal objects to other legal entities. Both property (e.g. through an agreement according to § 929 S. 1 BGB in the form of a sales contract) and possession (through loan , rent , lease , usufruct , leasing ) are transferable.
- The securities law governs the transferability of securities ( bearer by mere real agreement and handover , the order papers by agreement, endorsement and delivery, registered form by agreement, assignment and handover). Even money is in order to increase its marketability unlimited transferable. Money and bearer papers can be acquired in good faith even if they have been stolen , lost or otherwise lost from the owner ( (2) BGB).
- Budget law : The budgetary principles require the principle of annuality ( Para. 2 GG the preparation pro) financial year , of which there under the Prepaid an exception for the continuation of projects and household spending remains there. The temporal transferability of budget funds is an exception to the principle of annuality. According to the principle of the temporary specialty, budget funds to be spent may only be spent in the period for which the budget plan applies ( (2) HGrG). Exceptions are expenses for which transferability is permitted either in general (expenses for investments and expenses from earmarked income ; (1) HGrG) or by means of a special declaration in the budget (transferability of expenses, Section 15 (1) sentence 2 HGrG). Remaining income to be transferred and remaining expenditure to be transferred are to be kept as a separate budget title in accordance with HGrG.
- Software : Transferability (or portability ) is defined according to ISO / IEC 9126 as the “ease with which software can be 'transferred' from one hardware or software environment to another.” Here, a legal object is legally transferred to another. Today's heterogeneous information technology requires the execution of computer programs in different configurations .
The transferability of legal objects ensures their fungibility or mobility, so that they do not have to remain with their legal owner permanently . In this way their will marketability ensured. Not only individual items, but also items ( vehicle fleet ) or assets ( company purchase , inheritance ) are transferable under certain conditions. By transferability that can management not function, so that in transactions such as the purchase contract is a price ( market price , gold price , silver price , market price , metal value , intrinsic value , collectors value can) form.
- Otto Palandt / Jürgen Ellenberger , BGB Commentary , 73rd edition, 2014, preliminary note § 90, Rn. 2
- BGH NJW 1977, 199 , 200
- Christian Hattenhauer, One-sided private legal design , 2011, p. 403
- RG 148, 147
- BGH, judgment of November 16, 2017, Az .: IX ZR 21/17
- Kerstin Zähle / Holger Truckenbrodt, The municipal budget in preparation, execution and conclusion , 2017, p. 142 ff.
- Anja Kribernegg, Software-Test It Profession @ lly , 2013, p. 75