Assignment (Germany)

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Assignment (also cession from Latin cessio ) means in German civil law on the legal definition of § 398 clause 1 BGB contractual transfer a call from the old creditor ( assignor ) to the new creditor ( assignee ). It is about the replacement of the obligee by legal transaction without changing the debtor or the content of the claim.

Demarcation

The assignment is therefore to be distinguished from the assumption of debt and novation . In addition to the legal transfer of claims, the person of the obligee can also act by law (so-called cessio legis , for example Section 426 (2) sentence 1, Section 774 (1) sentence 1 BGB, Section 86 (1) VVG) or by act of sovereignty (for example, Section 835 Paragraph 2 ZPO ).

Change of an obligation

The claim as such has an asset. The assignment is therefore particularly significant as a means of payment (assignment in lieu of performance or on account of performance) and as a means of security for money or goods credits .

The assignment is a disposition of the claim. However, it is not a legal transaction in rem because it does not concern a right to a thing , but a claim arising from an obligation ( Section 241, Paragraph 1, Clause 1 BGB). This explains the classification in the general part of the law of obligations. In contrast, rights in rem such as property and claims, which only serve to enforce these rights in rem (e.g. Section 985 BGB), cannot be assigned: they are subject to the general rules on the transfer of rights in rem (e.g. Sections 929 ff. BGB) ) over.

As a disposition , the assignment contract is abstract from the underlying causal transaction . This can be, for example, a purchase of a receivable , a donation , an agency (in the case of collection) or a security agreement (in the case of the assignment of security, see below ). Deficiencies in causal business touch the effectiveness not the assignment, the requirement is, however, necessary kondizierbar ( §§ 812 ff. BGB).

Historical development

The Roman law knew originally no change of creditor, the debt would be unchanged. It was assumed that there was a close connection between the claim and the entitled party and that a mere change of creditor was therefore excluded. In order to be able to transfer a claim to a new authorized person, the practice made use of what is known as “litigation representation”. With her, the recipient of the claim was authorized to enforce the claim for himself, if necessary also to sue ( Latin procurator in rem suam ). This approach had the advantage over the active delegation that was also practiced (from a legal point of view it was actually a novation ) that it did not expire ancillary securities.

From the imperial law of the late 3rd century onwards, the assignee was given an increasingly improved position, because the actio utilis allowed an action for (irrevocably) own and not merely derived rights. Under the emperors Diocletian , who became famous for their large-scale codifications , the main representative of Western Roman Vulgar law, and Justinian , who had created the late antique compilations for the later so-called Corpus iuris civilis in the Eastern Roman Empire , the right of action developed beyond the original individual case of inheritance purchase to the right of action over all demands. At the end of this development, the assignment stood as a transfer of rights that was detached from the causal transaction. The actio utilis had acquired the character of a special succession in claims. With this new type of assignment, the personal bond of a claim was given up as a principle; this with the result that the cause and the disposition merged into one legal act.

The legal scholars of the 12th and 13th centuries broke dogma again in a backward-looking direction. They understood the cases listed in the Corpus iuris civilis as mere isolated cases. They graduated from a lawful background. The legal representation and the active delegation were restored in their original forms.

For the phase before the reception of Roman law, it is disputed whether a claim under Germanic law was transferable. The prevailing opinion denies the question in front of the horizon that claims were fundamentally understood as the legal consequences of a crime. In Germany, the Roman doctrine of assignment was ultimately adopted late, because until the time of the usus modernus pandectarum it remained valid in the version edited by the glossators. During the young usus modernus in the early 18th century, prevailing opinion followed the teachings of Johann Schilter . A derivative acquisition of receivables was then possible. The only controversial issue was whether German customary law had overlaid Roman law or whether the latter had simply not been received. The teaching then prevailing in the early 19th century was followed by Friedrich Mühlenbruch . After that, the transfer of things was possible, but not of claims, which meant that the loss of a person also meant the end of the law. The representatives of the doctrine believed they were in harmony with Roman law, which did not provide for individual succession in claims. From the middle of the 19th century, criticism was raised against this, particularly by Bernhard Windscheid . According to the critic, it is inconceivable that the assignor of the claim could irrevocably transfer the exercising authority to another, but remain the owner of the right himself. It could just as well not be the case that the assignee only exercises the foreign right on a representative basis, but that the exercise authority itself is his own right. A counter-thesis developed from this, which tried to grasp the actual interests. Based on Friedrich Carl von Savigny's definition that an assignment "should be understood as a change of subject without changing the identity of the law", the claim could be detached from the original creditor.

In the first deliberations on the German Civil Code (BGB), the view based on Savigny was used and discussed for a legal fixation. The assignment should be possible through an agreement between assignor and assignee; this provided that the debtor's consent is dispensable. As a legal consequence, the assignor lost his creditor position, while the assignee entered it. Since the debtor mostly had no knowledge of the assignment, a protective mechanism was required for him. So it should be possible that he could make a discharge to the assignor if he had no knowledge of the change of creditor. The BGB drafts 2 and 3, which were created around twenty years later under Gottlieb Planck , did not provide for any substantive changes to the subject complex. Thus the 2nd BGB Commission, headed by Heinrich Eduard von Pape , passed the version based on Bernhard Windscheid as law.

Conditions of assignment

Effective agreement on the subrogation, § 398 sentence 1 BGB

The assignment is a contract of disposal that must be assessed in accordance with the general provisions on the creation and effectiveness of declarations of intent and contracts . The assignment can be made against § 134 BGB i. V. m. § 203 StGB violates, since § 402 BGB obliges the assignor to surrender the documents required for enforcement, possibly confidential. The assignment contract is generally valid informally . This also applies if the underlying causal transaction requires a certain form (for example, according to Section 311b (1) sentence 1 BGB), since the assignment as a transaction is abstract. Exceptionally, however, the assignment contract can also be subject to a formal requirement under special laws (for example in accordance with Section 1154 (1) BGB). The debtor can also invoke the nullity of the assignment contract.

Eligibility of the assignor

The claim must actually exist and the assignor must be its owner. In addition, the assignment may not be excluded.

Existence of the claim in favor of the assignor

In principle, every claim is assignable, regardless of the debt relationship from which it originates. According to the prevailing opinion (h. M.), partial assignment is possible if the claim is divisible. However, claims that arise in the future can also be assigned ( assignment in advance , in practice often for security purposes ). Several claims can be assigned at a time ( Rahmenzession ), for example all of a certain relationship ( blanket ). If the assignor assigns the same claim several times ( double assignment), the assignor is only entitled to the first assignment, e.g. B. If A assigns a claim to B and later to C, then A is no longer the owner of the claim at the time of the assignment to C.

Principle of certainty : In the interests of legal certainty, it must bepossible to determine the cause of the guilt, content and debtor without any doubt. For future claims, it is sufficient that these requirements are met at the time the claim arises. In the case of global assignment in particular, each claim does not have to be identified individually if it is clear that all claims from a specific period or from specific business relationships are to be assigned.

Principle: no acquisition of claims in good faith . If the claim does not exist or if the assignor is not the owner of the claim - for example because he has already assigned it - an acquisition in good faith by the alleged new creditor is fundamentally out of the question. In contrast to the acquisition of a real right to a movable thing ( §§ 932 ff. BGB) or land ( § 892 BGB), there is no legal entity such as ownership ( § 1006 BGB) or the land register on which the new believers trust may. If the same claim is assigned multiple times, only the first one applies (priority principle); all subsequent ones go nowhere. Exceptionally, a claim can be acquired in good faith, provided that a document has been issued for it that acts as a legal entity. However, § 405 BGB only allows acquisition despite the objection of § 117 BGB or an exclusion of assignment in accordance with § 399 case 2 BGB, not in other cases of missing claim ownership. Such a possibility only exists if the assignee is legitimized by a legal entity (e.g. § 2366 BGB).

Transferability of the claim / no exclusion of the assignment

The assignability can be excluded by special regulations (for example § 613 sentence 2, § 664 paragraph 2 BGB). Furthermore, there is an exclusion according to § 399 or § 400 BGB into consideration.

Section 399 Case 1 BGB: Exclusion in the event of content changes. A change in the content of the claim through the assignment comes into consideration in particular in the case of highly personal claims that are tailored to the person of the obligee ( e.g. vacation entitlement , § 1 BUrlG), as well as a claim to release from a liability (e.g. § 257 BGB): this can can only be assigned to the obligee of this liability without changing the content.

Section 399 case 2 BGB: contractual exclusion of assignment ( pactum de non cedendo ). Debtors and creditors can agree that a claim should not be assignable. After h. M. this agreement has absolute, not just relative effect. Two exceptions to the ineffectiveness of the assignment in such cases are based on § 354a HGB .

On an exclusion of assignability according to 399 case 2 BGB the debtor can acc. 405 case 2 BGB only with knowledge of the assignee. According to § 851 Abs. 2 ZPO, agreements within the meaning of § 399 Case 2 BGB do not act to the detriment of enforcement creditors .

The debtor can agree to an injunction contrary to the agreement, as Section 399 Case 2 BGB only protects him. The more recent case law and prevailing doctrine (hL) holds the approval for an amendment contract with effect only for the future. Even if the assignment was expressly made dependent on the debtor's approval, this should not have retroactive effect. An older view approves of the consent of the debtor in accordance with Section 185 Paragraph 2 Clause 1 Case 1, Section 184 Paragraph 1 BGB with retroactive effect to the time of assignment. In the case of multiple assignments, the one to which the debtor first agrees should take effect; this can also be the later assignment. This dispute becomes significant when it comes to the question of whether dispositions or attachments made between assignment and consent remain effective or not.

§ 400 BGB: Non-attachable claims . If a claim cannot be attached, it cannot be assigned. This serves on the one hand to protect the subsistence level of the creditor, and on the other hand to protect the general public: the creditor should not be able to dispose of his own assets insofar as he is then dependent on state support . Therefore, § 400 BGB is mandatory and the debtor cannot waive his protection. The seizure is regulated in §§ 850 ff. ZPO.

Effects of Assignment

Transfer of the claim to the new creditor, § 398 sentence 2 BGB

The assignment leads to the transfer of the claim from the assignor to the assignee in the form in which it exists at the time of assignment, Section 398 sentence 2 BGB. In contrast to a contract takeover, the assignor remains the debtor's contractual partner and can assert the objection of Section 320 BGB against him . He also remains responsible for receiving the debtor's design declarations from a mutual contract.

With advance assignment, the assignee can only acquire the claim when it arises. Whether the assignor's creditors can access the claim in his insolvency and whether the assignee is entitled to litigation before the claim arises depends on whether the claim assigned in advance arises directly in the person of the assignee ( direct acquisition ) or initially for a legal second in the Person of the assignor ( transitory acquisition ). A distinction is mainly made according to whether an existing legal position (entitlement) could already be transferred with the assignment (for example, in the case of claims conditional on suspensory), or whether this is not the case. If an entitlement is transferred, there should be a direct acquisition, otherwise a transitory acquisition.

Transfer of ancillary and preferential rights, § 401 BGB

In addition, with the claim, their ancillary rights also pass to the assignee. Mortgages and liens as well as guarantees are expressly mentioned in § 401 BGB . Since these rights have in common that they are dependent on the claim ( accessory ), this provision is applied analogously to other accessory securities, in particular to the reservation ( §§ 883 ff. BGB). Dependent auxiliary claims such as information claims are also transferred.

With regard to the structuring rights to which the assignor is entitled with regard to the claim, according to h. M. to distinguish: if these only serve to enforce the claim (for example notice of maturity, right of choice of the obligee), they should pass over with the claim according to § 401 BGB. However, if they also concern the remaining position of the assignor (for example, §§ 346 ff. BGB after the declaration of withdrawal), they should be available to this or both creditors to exercise jointly. However, their transition can be agreed separately.

Section 401 of the German Civil Code (BGB) does not apply to fiduciary security interests such as security land charges , transfer of ownership or assignment . On the one hand, these are not accessory to the requirement; on the other hand, the obligee is bound in the internal relationship with the security provider, so that this position of trust stands in the way of the automatic change of person. However, the underlying causal relationship may result in the assignor's obligation under the law of obligations to also transfer such rights.

Obligations of the assignor, §§ 402, 403 BGB

The assignor is obliged to provide the assignee with the necessary information and to hand over the required documents ( § 402 BGB). On request, he must also issue a publicly certified document on the assignment ( Section 403 BGB).

Debtor Protection

The §§ 404, 406 et seq. BGB serve to protect the debtor. The basic idea of ​​these regulations is that the legal position of the debtor must not deteriorate as a result of the assignment, since he does not have to participate in it, does not even have to be aware of it.

Receipt of objections and defenses from the original obligation, § 404 BGB

Since the claim is transferred as it existed with the cedant ( § 398 sentence 2 BGB), it transfers with all the rights of defense that the debtor could already assert against the old creditor. Section 404 of the BGB therefore also applies to defenses. Only in the case of § 405 BGB , the debtor can not invoke § 117 BGB ( see above ).

Section 404 of the German Civil Code (BGB) initially applies to those objections / defenses whose prerequisites were met at the time of assignment (e.g. grounds for nullity with regard to the claim; statute of limitations ; fulfillment , including by offsetting ). However, it is also sufficient if the objection / objection is only "justified" at the time of the assignment, i.e. is based on the basis of the original obligation, even if all requirements are only met after the assignment (for example, if the declaration is missing in the case of design rights) . In the event of multiple assignments, the debtor can refer to the subsequent assignee in accordance with § 404 BGB also counter objections / defenses that he has acquired from the relationship with the previous assignee. The confirmation of the freedom of objection, often requested by the assignee from the debtor in practice, must be interpreted narrowly; in particular, a waiver of objections / defenses that are still unknown cannot be constructed in this way.

Protection of the debtor in the event of ignorance of the assignment, §§ 407, 408 BGB

If the debtor has no knowledge of the assignment, should the assignee a payment to the assignor as well as a legal transaction with the assignor concerning the requirement to be accept (for example, adoption , deferred payment , set-off), § 407 para. 1 BGB. If, after the assignment, but before the debtor becomes aware of this, a legal dispute has become pending between the assignor and the debtor, the assignee must also allow a final judgment in favor of the debtor to apply against him, Section 407 (2) BGB. The ignorance of the debtor is presumed; negligent ignorance does not harm (§ 407 Paragraph 1 and 2 BGB aE).

However , the assignee cannot invoke judgments or actions to the detriment of the debtor (e.g. termination , suspension of the statute of limitations) (“ allow against him”, Section 407 (1) and (2) BGB). Since the provision is solely intended to protect the debtor, he can waive its effect; For example, it may be beneficial for him to reclaim his performance from the assignor in order to offset a claim he has against the insolvent assignee against the assigned claim.

The principles also apply in the event of multiple assignments or judicial transfer of a claim that has already been assigned to a third party if the debtor has no knowledge of the earlier transfer of the claim ( Section 408 BGB). In the event of a mere ignorance of the actual sequence of assignments, Section 408 BGB does not protect the debtor's good faith .

Protection in the event of notification of assignment or until notification of assignment, §§ 409, 410 BGB

If the debtor is notified of the assignment, he must be able to rely on the accuracy of the notification. The notification can be made in two ways: either it comes - verbally or in writing - from the assignor, or the assignee presents the debtor with a deed of assignment issued by the assignor. The debtor is then allowed to exempt whoever has been named as the new creditor and to undertake legal acts against him. According to the prevailing opinion, this effect should not depend on the good faith of the debtor, who should be able to refer to the notice of assignment even if he has positive knowledge of the ineffectiveness of the assignment. The opposite view considers this to go too far and limits the protection of Section 409 (1) BGB to those cases in which the debtor really depends on the repayment of his liability.

The assignor can only demand performance to himself if the person named in the notification as assignee agrees to withdraw the notification (Section 409 (2) BGB). However, the assignor can have a claim to this under Section 812 BGB.

Section 410 (1) BGB grants the debtor a right to refuse performance until documentary evidence of the assignment by the assignee. Until then, he mayimmediately rejectthe reminder or terminationfor this reason; unless the assignor has notified the debtor of the assignment - in writing. The debtor does not have to pay without the protection of § 409 BGB.

Debtor protection in the context of offsetting, § 406 BGB

The debtor can easily offset against the assignee with a claim to which he is entitled against the assignee. § 406 BGB concerns the cases in which he should be able to offset against a claim against the assignor, i.e. if the reciprocity required in § 387 BGB is not given. Section 406 of the German Civil Code (BGB) only applies to offsetting carried out with knowledge of the assignment; it must be declared to the assignee. For offsets that have already been declared to the assignor prior to the assignment, Section 404 of the German Civil Code (BGB) applies ; for offsetting in ignorance of the assignment, § 407 BGB applies .

§ 406 BGB helps over the lack of reciprocity of the claims. The debtor is worthy of protection if he could hope to be able to offset his counterclaim against the assigned (main) claim. The decisive point is the point in time at which he becomes aware of the assignment.

If he already knew of the assignment when acquiring the counterclaim, he cannot set off against the assignee (§ 406 Hs. 2 Alt. 1 BGB). Then he had to be aware of the lack of reciprocity between the demands.

If the counterclaim of the debtor only becomes due after the debtor's knowledge of the assignment and later than the assigned main claim, the debtor cannot offset against the assignee either (§ 406 Hs. 2 Alt. 2 BGB). If his obligation had been fulfilled on time, the debtor would not have been able to set off his counterclaim not yet due to the ceding company either.

Conversely, the debtor remains entitled to offset if at the time at which he became aware of the assignment, there was already a set-off situation within the meaning of § 389 BGB - § 406 BGB helps over the lack of reciprocity of the claims. He also remains entitled if, without the assignment, a set-off situation would have developed for him at the legal situation at the time of becoming aware, because his counterclaim would have become due before or with the assigned main claim.

Special cases of assignment

Assignment of security

Here the claim is used to secure a bank loan or a trade loan . Causal transaction is a security agreement which usually obliges the assignee ( security buyer ) internally to realize the claim only in the event of security and to assign it back when the loan is repaid. The global assignment and the shell assignment are relevant for corporate financing , in which all claims of the assignor against third-party debtors or at least all from certain business relationships are assigned to the assignee ( master assignment ). The difference between the two lies in the legal validity of the assignment lists on which these claims are recorded. While in the Mantelzession the handover of the lists to the bank constitutive importance (this creates the Mantelzession legally), you come to the blanket only declaratory significance; this assignment becomes legally effective when the claim arises. Often the security assignment takes place as a so-called silent assignment : the assignor assigns the claim, but is at the same time authorized by the assignee to collect it.

Extended reservation of title

Here the seller of the reservation of title permits his buyer to resell the purchased item and also to transfer ownership of it; In return, he has the claims from the resale assigned in advance.

Debt collection

The claim is transferred by the assignor so that the assignee can collect it for him. In contrast to the direct debit authorization, the assignee here becomes the owner of the claim and is only obliged to the assignor internally through the collection agreement.

Factoring

In this construction, which is not regulated by law, the creditor transfers claims to a factor who provides him with the equivalent value minus a flat-rate risk. The false factoring , in which this exchange in the case of Uneintreibbarkeit made the call reversed, is generally classified as a loan business that true factoring, in which a rescission is excluded as an asset purchase. In both cases, factoring is the abstract causal transaction that is fulfilled by the assignment.

See also

literature

  • Larenz: law of obligations. Volume I, General Part , 14th Edition 1987, §§ 33, 34.
  • Ahcin / Armbrüster: Basic cases on the right of assignment . In: JuS 2000, pp. 450 ff., 549 ff., 658 ff., 768 ff., 865 ff., 965 ff.
  • Lutz Haertlein : The legal status of the debtor of an assigned claim . In: JuS 2007, p. 1073 ff.
  • Bacher: Offsetting against assigned claims , JA 1992, pp. 200 ff., 234 ff.
  • Eidenmüller: The Dogmatics of Assignment Against the Background of International Development , AcP 204 (2004), p. 457 ff.

Web links

Wiktionary: Assignment  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ In detail Larenz, Schuldrecht, Volume I AT , 14th edition 1987, § 33 I, II.
  2. ↑ Christian Ahcin / Christian Armbrüster, basic cases for Zessionsrecht , JuS 2000, p 450, 452nd
  3. ↑ Larenz, Schuldrecht, Volume I AT , 14th edition 1987, § 34 Paragraph 2 (p. 583).
  4. ↑ Gerhard Lüke, Grundfragen des Zessionsrechts , JuS 1995, p. 90.
  5. ↑ Helmut Coing : European Private Law , Volume I, 1985, § 86, p. 444 ff. And Volume II, 1989, § 94, p. 468 ff .; Max Kaser : Das Römische Privatrecht , first section, 2nd edition, 1971, p. 652 ff.
  6. ↑ Wulf-Dieter Gehrich: Kognitur and Prokuratur in rem suam as cession forms of classical Roman law , 1963.
  7. ^ Fridolin Eisele: Die actio utilis des Cessionars , Freiburg, 1887.
  8. ↑ a b c Reinhard Bork : The power to dispose of the advance assignment . In: Reinhard Zimmermann u. a. (Ed.): Legal history and private law dogmatics. CF Müller, Heidelberg 1999, pp. 289-305 (291).
  9. ^ Gerhard Wesenberg , Gunter Wesener : Modern German history of private law in the context of European legal development , 4th edition, 1985, p. 51.
  10. ^ Heinrich Mitteis / Heinz Lieberich : German Private Law , 9th edition, 1981, p. 143 f.
  11. ^ Johann Schilter : Praxis iuris Romani in foro Germanico , Volume II, 3rd edition, Jena 1713, §§ 62 ff .; Klaus Luig : On the history of the Zessionslehre , 1966, p. 32 ff.
  12. ↑ Klaus Luig : Zur Geschichte der Zessionslehre , 1966, p. 59 ff.
  13. ^ Christian Friedrich Mühlenbruch : The Doctrine of the Cession of Claims Rights , 3rd Edition, Greifswald 1836.
  14. ^ Friedrich Carl von Savigny : System of today's Roman law , 3rd volume, Berlin 1840, p. 8.
  15. ^ Bernhard Windscheid : The actio of Roman civil law from the standpoint of today's law , Düsseldorf, 1856, p. 158 and 174.
  16. ↑ Motifs for the draft of a civil code for the German Empire. 5 volumes, published by J. Guttentag (D. Collin), Berlin / Leipzig 1888: Prot., 763 ff. = Benno Mugdan , Mot. II = Volume II: Law of Obligations. Digitized via archive.org
  17. ↑ Ahcin / Armbrüster, basic cases on the right of assignment , JuS 2000, p. 450, 452 ff .; Looschelders, Law of Obligations AT , 10th ed. 2012, Rn. 1091
  18. ↑ Hans Brox / Wolf-Dietrich Walker, General Law of Obligations , 36th edition 2012, § 34 Rn. 9.
  19. ↑ Dirk Looschelders, Law of Obligations AT , 10th ed. 2012, Rn. 1123.
  20. ↑ Christian Grüneberg, in: Otto Palandt , BGB Commentary , 72nd edition 2013, § 398 Rn. 10; Larenz, Law of Obligations Volume I AT , 14th edition 1987, § 34 Paragraph 1 (p. 579); a. A. Roth, in: MünchKomm Volume 2, 2012, § 398 Rn. 65.
  21. ↑ Grüneberg, in: Palandt, 72nd edition 2013, § 398 Rn. 11 mwN
  22. ↑ Looschelders, Law of Obligations AT , 10th edition 2012, Rn. 1097 ff .; on the various constellations in Grüneberg, in: Palandt, 72nd edition 2013, § 398 marginal no. 14 ff.
  23. ^ Medicus / Lorenz, Law of Obligations I AT , 20th ed. 2012, Rn. 755.
  24. ↑ Looschelders, Law of Obligations AT , 10th edition 2012, Rn. 1099: The assignment of all claims up to a certain amount is not sufficient, since if it is exceeded it is not clear which claims are to remain with the assignor.
  25. ^ Medicus / Lorenz, Law of Obligations I AT , 20th ed. 2012, Rn. 758
  26. ↑ Lorenz, Basic Knowledge - Civil Law: Assignment , JuS 2009, pp. 891, 892.
  27. ↑ In detail Chris Thomale, The good faith acquisition of claims in the BGB , in: JuS 2010, p. 857 ff.
  28. ↑ Overview by Christian Grüneberg, in: Otto Palandt, BGB Commentary , 72nd edition 2013, § 399 Rn. 4 ff.
  29. ↑ Looschelders, Law of Obligations AT , 10th edition 2012, Rn. 1103
  30. ↑ See only BGH , NJW 1991, p. 559; Grüneberg, in: Palandt, 72nd edition 2013, § 399 Rn. 12; Cress / B. Eckardt, in: Nomos Commentary BGB. Law of Obligations , Volume 2/1, 2nd edition 2012, § 399 Rn. 12; Busche, in: Staudinger, 2012, § 399 Rn. 65; a. AHP Westermann, in: Erman, 13th edition 2011, § 399 Rn. 3a; Scholz, The illegal assignment , NJW 1960, 1837.
  31. ↑ Grüneberg, in: Palandt, 72nd edition 2013, § 399 Rn. 12; Busche, in: Staudinger, 2012, § 399 Rn. 63.
  32. ↑ BGH, NJW 1978, 813; Larenz, Law of Obligations Volume I AT , 14th edition 1987, § 34 Paragraph 2 (p. 581 f.); Grüneberg, in: Palandt, 72nd edition 2013, § 399 Rn. 12; Busche, in: Staudinger, 2012, § 399 Rn. 63 mwN
  33. ↑ BGH, NJW 1990, 109; a. A. Roth, in: MünchKomm Volume 2, 2012, § 399 Rn. 38.
  34. ↑ BGH, NJW 1964, 243, 244, Dieter Medicus / Stephan Lorenz, Law of Obligations I AT , 20th ed. 2012, Rn. 761.
  35. ↑ On the teleological reduction of § 404 BGB with sufficient consideration cf. Ahcin / Armbrüster, basic cases on the right of assignment , JuS 2000, pp. 549, 552.
  36. ↑ Brox / Walker, General Law of Obligations , 36th Edition 2012, § 34 Rn. 13.
  37. ↑ Grüneberg, in: Palandt, 72nd edition 2013, § 398 Rn. 21; in detail Larenz, Law of Obligations Volume I AT , 14th edition 1987, § 34 Paragraph 1 (p. 577 f.).
  38. ↑ In detail Helmut Köhler, Assignment of Claims and Exercise of Design Rights , in: JZ 1986, 516, 518; if the debtor is prevented from notifying him, he can acc. Proceed in accordance with Section 132 (2) of the German Civil Code (BGB) or, analogously to Section 770 (1) of the German Civil Code (BGB), raise an objection to the assignee of the possibility of design.
  39. ↑ In detail Larenz, Law of Obligations Volume I AT , 14th edition 1987, § 34 Paragraph 3 (p. 585 f.); Medicus / Lorenz, Law of Obligations I AT , 20th ed. 2012, Rn. 756; see. also Grüneberg, in: Palandt, 72nd edition 2013, § 398 Rn. 12 mwN on the dispute; Cress / B. Eckardt, in: Nomos Commentary BGB SchuldR, Volume 2/1, 2nd edition 2012, § 398 Rn. 16.
  40. ↑ Grüneberg, in: Palandt, 72nd edition 2013, § 401 Rn. 2; Roth, in: MünchKomm Volume 2, 2012, § 401 Rn. 7 ff.
  41. ↑ G. Lüke, basic cases of Zessionsrechts , JuS 1995, pp 90, 92; Examples at Kresse / B. Eckardt, in: Nomos Commentary BGB SchuldR, Volume 2/1, 2nd edition 2012, § 401 Rn. 5 ff.
  42. ↑ In detail Roth, in: MünchKomm Volume 2, 2012, § 398 Rn. 97 ff .; and Busche, in: Staudinger, 2012, § 413 Rn. 10 ff. Each with further references to the respective disputes.
  43. ↑ Busche, in: Staudinger, 2012, § 401 Rn. 35.
  44. ^ Medicus / Lorenz, Law of Obligations I AT , 20th ed. 2012, Rn. 752; on the right of withdrawal cf. BGH, NJW 1985, 2640; on the right to reduction in price BGHZ 95, 250; to the rework claim BGHZ 96, 146; Pick, Objections to Mutual Contracts after Assignment , AcP 172 (1972), 39.
  45. ^ Roth, in: MünchKomm Volume 2, 2012, § 398 Rn. 98; Looschelders, Law of Obligations AT , 10th ed. 2012, Rn. 1106 mwN
  46. ^ Medicus / Lorenz, Law of Obligations I AT , 20th ed. 2012, Rn. 756
  47. ↑ Looschelders, Law of Obligations AT , 10th edition 2012, Rn. 1112.
  48. ↑ General M., cf. only Grüneberg, in: Palandt, 72nd edition 2013, § 404 Rn. 2.
  49. ↑ BGH, NJW 1957, 1553, 1554.
  50. ↑ Grüneberg, in: Palandt, 72nd edition 2013, § 404 Rn. 7; BGH, NJW 1983, 1904.
  51. ↑ If the assignment takes place during the pending process, § 407 BGB does not apply, but §§ 265, 325 ZPO.
  52. ^ Medicus / Lorenz, Law of Obligations I AT , 20th ed. 2012, Rn. 779; Cress / B. Eckardt, in: Nomos Commentary, BGB SchuldR, Volume 2/1, 2nd edition 2012, § 407 Rn. 15th
  53. ↑ BGHZ 100, 36, 46 ff., Note by K.Schmidt , JuS 1987, 911 ff.
  54. ↑ Grüneberg, in: Palandt, 72nd edition 2013, § 409 Rn. 2.
  55. ↑ Larenz, Law of Obligations Volume I AT , 14th edition 1987, § 34 Paragraph 4 (p. 593); differentiating: Roth, in: MünchKomm Volume 2, 2012, § 409 Rn. 12; Grüneberg, in: Palandt, 72nd edition 2013, § 409 Rn. 5.
  56. ↑ cress / B. Eckardt, in: Nomos Commentary BGB SchuldR, Volume 2/1, 2nd edition 2012, § 409 Rn. 6; Busche, in: Staudinger, 2012, Rn. 29; Karollus, unlimited debtor protection according to § 409 BGB? , JZ 1992, 557; Rieke, For the protection of the debtor according to § 409 Abs. 1 BGB , NJW 1959, 1415.
  57. ↑ See also § 174 BGB for the power of attorney.
  58. ↑ Looschelders, Law of Obligations AT , 10th edition 2012, Rn. 1126.
  59. ↑ After h. M., this also applies to the case of advance assignment, cf. Ahcin / Armbrüster , basic cases on the right of assignment, JuS 2000, 658, 661 (case 18).
  60. ↑ BGH, NJW 1996, 1056, 1058.
  61. ↑ Grüneberg, in: Palandt, 72nd edition 2013, § 406 Rn. 5.
  62. ↑ Busche, in: Staudinger, 2012, introduction to §§ 398 ff. Rn. 28.
  63. ↑ For more detailed information on the authorization to collect: Larenz, Schuldrecht Volume I AT , 14th edition 1987, § 34 V (p. 597); Busche, in: Staudinger, 2012, introduction to §§ 398 ff. Rn. 107 ff.
  64. ^ Jork, Factoring, extended reservation of title and security global assignment in collision cases, JuS 1994, 1019, 1022.