Right of redemption

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In civil law, the right to redemption is the right to be able to pay on someone else's debt (even if the debtor objects to it) , with the effect that, insofar as the creditor is satisfied by the performance of the person entitled to redemption, the debt is not extinguished, but by law passes to the person entitled to redemption and who in turn can assert it against the debtor.

Conceptual

If the process of transferring the creditor position is referred to as replacement , then the person entitled to replacement is the active person who replaces the creditor in his creditor position . Another name for this legal institute is subrogation , whereby the usage of the language is different in that the creditor is the active one, namely the subrogator who subrogates the person who replaces him in his creditor position .

German law

The German Civil Code (BGB) knows both a general and a special right of replacement. The basic idea is always the same. Anyone who is entitled to redemption should always be who, as a result of the obligee's enforcement of the claim, runs the risk of suffering losses, such as losing the object that he gave as security for someone else's debt. Since the debtor is generally to be ultimately burdened in the internal relationship between the debtor and the person entitled to replacement, the statutory transfer of claims generally also corresponds to the internal relationship, to which the external relationship is thus adjusted. With the claim, the accessory securities ordered for them , such as the mortgage or the lien , go beyond § 402 , § 412 BGB.

The general right of redemption is regulated in Section 268 of the German Civil Code (BGB) and has the following prerequisites, which also appear in various modifications for the special redemption rights:

  • The obligee carries out the enforcement of the claim - in § 268 BGB the enforcement - on an object of the debtor.
  • As a result, the person entitled to replacement must run the risk of losing a legal position - in Section 268 of the German Civil Code (BGB), a right to the debtor's thing that threatens to be extinguished through foreclosure or ownership of the thing, which must also be at risk.

The person entitled to replacement can then satisfy the obligee with the effect set out above. Satisfaction can take place through deposit or offsetting .

The special detachment rights as the redemption right of the guarantor ( § 774 BGB) that the different from the debtor owner of a mortgaged property ( § 1143 BGB) or of the debtor is not identical lien of the pledgor ( § 1225 BGB). It is almost always not necessary that the foreclosure is already carried out, but it can be redeemed as soon as the secured claim is due, since from this moment the security provider is always at risk of losing the security item (with the surety the risk of legal action and foreclosure).