In the law of obligations, the assignment ( English assignment ) is a technical term defined in Section 783 of the German Civil Code for a written authorization to perform which is given to the person who is ultimately to receive the object of performance documented therein, mostly money , securities or other justifiable items . An exemplary application is traditionally the check . In the certificate , the exhibitor authorizes someone else to perform to a third party on behalf of the exhibitor upon presentation of the certificate .
However, the term is also used for oral performance instructions that are not given to the beneficiary.
The issuer is referred to as the instructing party, the “other” is the instructed person, and the third party is the instruction or payment recipient . The instruction therefore creates legal relationships between three legal entities , whereby there is no direct service relationship between the instructing and the payee. The legal relationships are characterized on the one hand by the coverage ratio, the relationship between the instructing and the instructed, by the currency ratio that exists between the instructing and the instruction recipient and on the other hand by the execution relationship (sometimes also: redemption ratio) between the instructed and the instruction recipient, in which the visible asset shift takes place.
As an instrument of payment transactions , the instruction has its origin in the "civil law instruction" of § § 783 ff. BGB . A statement must be their legal effectiveness fulfill four conditions:
- Form: written form ;
- Subject: money, securities or other reasonable property;
- Certificate: the handing over of the certificate from the issuer to the recipient of the instructions is a double authorization as an issuing contract , but does not yet create an obligation . With the contractual issue, ownership of the instruction document is transferred to the instruction recipient.
- Assumption: the instructed must accept the instruction, since only then can a performance obligation and thus a debt relationship arise.
Under these conditions, the Commanded provides from its own assets the promised power to the payee and can thus own debt repaid to the exhibitor or this credit grant. There are or are therefore two contractual obligations.
The "civil-legal instruction" goes back to Roman law , where it was referred to as delegatio and, as evidenced by the early classic Tiberius Iulius Celsus Polemaeanus, appeared in two forms, namely as a payment ( Latin delegatio solvendi ) and as an obligation ( Latin delegatio delegandi ). By means of such an instruction, not only a payment obligation could be fulfilled, but also a donation could be made or a loan could be granted. This instruction concept underwent a paradigm shift in late antiquity under Emperor Justinian I , who was based on classical law, pursued the establishment of the unity of late ancient Roman law and later created the so-called corpus iuris civilis , because it was summarized as novation ( Latin novatio ) . Background: In the case of a change of creditor or debtor, there would always be a novation.
In Germany the instruction appeared in the sense of a payment instruction - as far as can be seen - for the first time in 1480 in Meißen, where it was mentioned as "aneweisung off vnsern wochenlon" (instruction on our weekly wages). The verb "instruct" and the "instructor" appeared in the dictionaries of Josua Maaler in 1561 and in Kaspar von Stieler's in 1691 . As early as 1718, German specialist literature adopted the Roman term of instruction. The General Prussian Land Law (APL) of June 1794 regulated the legal institution of the instruction in Chapter I 16 (§§ 251 ff. APL) in detail. In 1815, the instruction was referred to as "the act" by which "a new debtor with the approval of the obligee takes the place of the old debtor and this is counted out of the obligee". The debtor is not released from his liability in the case of an assignment , but in the case of a delegation . Roman law acted as an important source of law for the BGB which came into force in January 1900, as its references in §§ 783 ff. BGB prove. With the spread of new means of payment such as the check (March 1908) and the development of payment transactions from January 1909, however, the instruction lost its former importance.
There are two main types today, namely the civil-legal instruction and the commercial instruction .
- Those involved in the “civil-legal instruction” of §§ 783 ff. BGB are exclusively non-traders. The "civil-legal instruction" is a security , specifically a name paper (§ 783 BGB), because the payee is named. As the original form of today's payment transactions, it was superseded by the check, which, however, is not part of the "civil law instructions" because of a bank as the drawee ( Art. 3 Check Act ). “Civil-legal instructions” no longer appear in today's payment transactions.
- The commercial instruction (§§ 363–365 HGB) is characterized by the fact that a merchant acts as an authorized person and whose documentary performance must not be dependent on a consideration ( § 363 Paragraph 1 HGB ). The instructing party and the receiving party do not need to be a businessman. It is an approved order paper and can be transferred by endorsement if it contains an order clause ; without an order clause, it is also a registered paper. There are the following types of commercial instructions (Section 363 (2) HGB):
- Loading note ( § 443 HGB)
- Warehouse receipt ( § 475C HGB)
- Bill of lading ( § 515 HGB)
- Transport insurance policy (§ § 130 ff. VVG )
- Commercial obligation (such as savings bonds , travelers checks and letters of credit ).
- In the first three subspecies is called tradition securities whose rightful holder of the same owners of the securities represented by these goods ( commodities is). Savings bonds, traveller's checks and letters of credit must always be issued by credit institutions so that they are commercial instructions - and specifically commercial obligations. The commercial obligation may or may not contain the reason for guilt; without a reason for guilt, it is usually an abstract promise of guilt . The transport insurance policy with the character of securities has now been completely replaced by insurance "for whom it concerns" (insurance certificate for the holder).
Checks and (drawn) bills of exchange are structurally similar to commercial instructions, but are special legal forms. The postal order had the word “instruction” as part of it, but it was a payment order and not an instruction in this sense, because an instruction to be handed over to the recipient of the instruction was not intended. It has been abolished in Germany since April 2002. The domestic transfer was classified as an instruction in the broader sense until December 2001, but today's payment service law of § § 676a ff. BGB is based on a contract .
The instruction is a unilateral declaration of intent and not a contract. If the instructed accepts the instruction by means of a written note on the document, he is obliged to provide the instruction recipient ( Section 784 (1) BGB), provided the latter is given the certificate ( Section 785 BGB). That makes the instruction a security. Through this assumption, the obligation of the instructed becomes an independent (“abstract”) performance obligation (promise of debt) that is detached from the original legal relationship. In the case of an "instruction on debt", the instructed person is released from his liability to the instructing person when the instruction is carried out ( Section 787 (1) BGB), in the case of an "instruction on credit" the instructed receives a claim for reimbursement of expenses against the instructing person under Section 670 BGB . The instructing person can revoke the instruction according to § 790 BGB as long as the instructed person has not provided the instruction receiver or accepted the instruction.
The triangular relationship leads to legal relationships between the parties. As a rule, the instructing person will not allow the instruction recipient to perform the service by means of the instructed on his account without legal justification. The instructed, in turn, will not work for the instructing person without a reason. Rather, the instructing intends to pay off a liability to the instruction recipient through the performance of the instructed. The debt ratio on the basis of which the instructing person wishes to provide the instruction recipient with the service is called the currency ratio. The legal relationship on the basis of which the instructed carries out the instructing’s business on his account is called the cover ratio.
The relationship between the instructing and the recipient (not: instructed) is the currency ratio . The liability that the instructing person wants to repay with the instruction is often a sales contract or a similar contract with a monetary obligation. The mere handing over of the instruction document does not lead to the repayment of the relevant liability, since the instruction recipient only has a prospect of performance by the instructed. Even if the person instructed has already accepted the instruction, the obligation of the instructing person from the value ratio only expires when the service has been effected by the person instructed to the recipient of the instruction ( Section 788 BGB). The transfer of an instruction certificate already adopted is not a performance instead of fulfillment , but only a power of performance .
The relationship between the instructing and the instructed is called the coverage ratio . As a rule, two legal relationships are to be established in the cover relationship under German law ( principle of separation ):
- Basic relationship
The basic relationship represents the motive for the instructed to undertake an agency for the instructing person at all by paying in the enforcement relationship. He would like to pay off a debt to the instructing person ( instruction on debt ) or to grant the instructing person a loan ( instruction on credit ). An instruction on debt takes place, for example, when an instructed banker pays a sum of money to the instruction recipient because of a credit balance of the instructing person. An instruction to be guilty is also given if the instructed person pays a purchase price debt to the instructing person by making a payment to the instruction recipient. An instruction on credit is given, for example, if the instructed accepts the instruction to the instructing party on account of performance and the instruction is only made due later. The effect of the payment to the recipient of the instruction serves the motives of the instructed , since he works for the account of the instructing person. If the instructed person owes something to the instructing person, the instructed person is released from debt in the amount of the performance in the enforcement relationship (Germany: Section 787 (1) BGB; Austria: Section 1401 (3) ABGB; Switzerland: Art. 467 (1) OR ). A separate offsetting of the mutual claims is no longer required ( instruction on guilt ).
The "weakness" of the basic relationship is to be seen in the fact that the motive of the instructed expressed in the basic relationship does not oblige him towards the instructing person to take care of the business for him. If, for example, the basic relationship consists of a liability towards the instructing person, then under German law the instructed person has no obligation towards the instructing person to accept the instruction ( Section 787 (2) BGB). By virtue of this obligation, the instructing person can only demand that the person instructed return to him. He cannot demand that the person instructed make payments to the recipient of the instructions. In Austria, however , Section 1401 of the ABGB provides for such an obligation in the event of an instruction of guilt. But it only works towards the instructing person.
- Agency relationship
The legal relationship that over the instructional committed in coverage ratio to dependency immediately, to get a "deal" to the instructing is usually an agency agreement with werkvertraglichem content . In case of doubt, the cover relationship has the quality of a bogus contract in favor of third parties . The instructing person can demand payment to the recipient of the payment from the agent under the agency agreement without the recipient of the payment (before accepting the instruction) being granted a right to the service.
The relationship between the instructed and the instruction receiver is the execution ratio or redemption ratio . The term donation ratio, which is also frequently used, is controversial in legal literature, as donations take place in all relationships and the term therefore misses the core. Before the instructed person accepts the instruction, the recipient of the instruction only has the prospect of receiving the service. Only through acceptance does the recipient of the instruction acquire a claim to the service.
Acceptance of the instruction
Before the instruction is accepted by the instructed, the instruction document only certifies the authorization of the instruction recipient to receive the services due to the instructing from the instructed in his own name and the right of the instructed to perform for the account of the instructing person. The authorization of the instructed to perform for the account of the instructing, but does not yet include any obligation to perform. This does not affect any obligation of the instructed to act on behalf of the instructing person under an agency agreement. The instruction recipient only has the opportunity to receive the service from the instructed by submitting and handing over the instruction document. Nevertheless, the instruction document is already transferable to another person. The authorization of the person receiving the instruction to collect the services from the person being instructed in his own name also does not create any rights for the person receiving the instruction.
After the adoption
The instruction recipient receives a claim against the instructed only through the acceptance (acceptance) of the instructed. After the acceptance, there is an abstract promise of guilt between the recipient of the instruction and the instructed. In Germany, acceptance takes place by means of a written note on the instruction document ( Section 784 (2) sentence 1 BGB). According to the prevailing opinion , the acceptance also has the character of a contract. With an accepted instruction, the instructing person has only served the instruction recipient's claim from the currency ratio on account of performance, since the instruction recipient can only be certain of the verity , but not of the creditworthiness of his claim to the instructed due to the abstract obligation towards the instructed . Only with the payment of the service in the execution relationship does the obligation of the instructing person from the value relationship expire .
If the instructed refuses to accept the instruction or the performance of the obligation resulting from acceptance, or if the instruction recipient does not want to or cannot assert the instruction, he must notify the instructing immediately.
Abstractness of the instruction
A promise of debt resulting from acceptance of the instruction is abstract, i.e. its existence or the enforceability of the rights from this promise of debt do not depend on the existence or enforceability of the rights from the cover relationship or on the existence or enforceability of the rights from the value date ratio . The person instructed can only counter those objections and defenses that relate to the validity of the acceptance, result from the content of the instruction or the content of the acceptance or the person instructed is entitled to directly against the person receiving the instruction (Germany: Section 784 (1) BGB; Austria: § 1402 ABGB; Switzerland: Art. 468 para. 1 OR).
Property of the letter of instruction as a security
The instruction document is a registered paper. A security of this type evidences a private right in such a way that it cannot be asserted without the document itself. According to Section 785 of the German Civil Code (BGB), the person instructed is only obliged to perform step by step against delivery of the instruction document (performance on sight). The instruction document is not a security in the narrower sense, because the right from the expulsion document does not follow the right from the instruction document, because the claim from instruction is not transferred according to property law principles. Rather, ownership of the instruction document belongs to the creditor of the claim ( § 792 sentence 3, § 952 paragraph 2 BGB). The right to paper thus follows the right from paper (security in the broader sense).
Transfer of instruction
The entitlement from the instruction can be transferred through an issuing contract between the instruction recipient and a third person. The provisions on the assignment of a claim apply accordingly to the transfer ( Section 792 (1) BGB). Insofar as a claim from an abstract promise of debt has already arisen through acceptance of the instruction, Section 792 (1) BGB only clarifies the applicability of the right of assignment and modifies it by requiring the handing over of the instruction document and the necessary written form of the grant agreement. In the event that the instruction has not been accepted, the right of assignment applies according to Section 792, Paragraph 1 of the German Civil Code, although the recipient of the instruction only has the prospect of receiving the assigned service. The transfer of the claim to property law is based on the handover requirement and the written form of the grant agreement . Ownership of the document itself belongs to the creditor of the claim from the instruction (first the instruction recipient, then the third party). Because of the application of the right of representation, a bona fide purchaser is not protected against unauthorized use (for example if the instruction has since been revoked). The inability to acquire good faith seriously hinders the marketability of the instruction.
The issuer can, however, exclude the transmission of the instruction. The exclusion is only valid vis-à-vis the instructed if it can be seen in the instruction document or if the instructing person notifies the instructed of the exclusion before he accepts the instruction or performs the service under the instruction. In commercial transactions, instructions issued to a merchant can be transferred by endorsement (commercial order papers ).
Revocation of the instruction
The instructing person can revoke the instruction to the instructed as long as the instructed has not accepted the instruction towards the instruction receiver or has effected the service. A revocation of the instruction is possible even if the instructing violates an obligation towards the recipient of the instruction by revoking it.
The BGH case law had to deal more frequently with the problem area of the " incorrect instruction ", which concerned the enforcement relationship and there led to the rejection or affirmation of conditional claims .
The pure form of the instruction is of little importance today. However, it is the basis of the bill of exchange and the check and is important in securities law . The provisions of the instruction also apply if a check or bill of exchange is formally null and void , then they can be reinterpreted as an instruction. Ultimately, all types of instruction should enable indirect (indirect) asset transfers, avoid the otherwise necessary duplication of a payment transaction and thus serve to facilitate payment transactions.
In Austria and Switzerland , the instruction right is comparable to German law. In Austria, the instructing person is called “Assignant”, the instructed person is called “Assignat” and the payee is called “Assignatar” ( § 1400 ABGB ). According to Art. 1401 ABGB, the “instruction on guilt” only becomes effective when the assignat has performed. In Switzerland, the instruction is regulated in Art. 466 et seq. Of the Code of Obligations ; here, too, a debt is only repaid once the payment has been made (Art. 467 Paragraph 1 OR).
- Dieter Medicus : Civil law. A presentation for exam preparation, arranged according to the requirements. Heymanns, Cologne 1968. 23rd, revised edition with Jens Petersen : Vahlen, Munich 2011, ISBN 978-3-8006-3908-3 . No. 674 ff.
- A [ndreas]. von Tuhr : On the teaching of the instruction . 1904
- ↑ a b c Dieter Medicus : Civil law. A presentation for exam preparation, arranged according to the requirements. Heymanns, Cologne 1968. 23rd, revised edition with Jens Petersen : Vahlen, Munich 2011, ISBN 978-3-8006-3908-3 . No. 674.
- ^ Heinrich Honsell, Römisches Recht , 2015, p. 108
- ↑ Peter W. Heermann, Money and Money Transactions, 2003, § 10 Rn. 2, p. 170
- ^ Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 109.
- ^ Paul Jörs , Wolfgang Kunkel , Leopold Wenger : Roman private law. 3rd edition, Berlin 1987, p. 270.
- ↑ Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary , 2010, p. 308
- ↑ Josua Maaler, Die Teütsch Spraach , 1561, p. 29
- ↑ Kaspar von Stieler, The Teuschen Language Family Tree and Fortwachs , Volume 2, 1691, Col. 2483
- ↑ Paul Kühtzen: Rechtsgrundlehren des Kaiser Justiniani , third book, 1718, p. 992
- ^ Carl Wilhelm Enders, Theory of Commerce , 1815, p. 130
- ↑ Peter W. Heermann, Money and Money Transactions , 2003, § 10 Rn. 4, p. 171
- ↑ Jürgen Krumnow / Ludwig Gramlich / Thomas A. Lange / Thomas M. Dewner (eds.), Gabler Bank-Lexikon: Bank - Börse - Financing , 2002, p. 1270
- ^ A b Peter W. Heermann : Money and Money Transactions , 2003, § 10 No. 4, p. 171 f.
- ↑ Joseföffelholz / Gerhard Müller: Banklexikon , 1988, Sp. 145 f.
- ↑ BGHZ 61, 289 (rejection of a condition between the person instructed and the recipient of the instructions).
- ↑ BGHZ 87, 393.
- ↑ BGH WM 1994, 56