Right to exemption

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A right to exemption (also right to exemption ) is the right to demand exemption from a liability from someone else . The holder of an exemption claim - the exemption creditor - is exposed to a liability. As a rule, this is a liability to a third party ( third party creditor ), so that three people are regularly involved:

  • the deliverer
  • the indemnity debtor
  • the third party creditor.

A right to exemption can arise from many and completely different debt relationships. According to § 257 sentence 1 BGB, the person entitled to reimbursement of expenses can demand exemption from a liability if he enters into this for the purpose which entitles him to demand reimbursement of expenses.

In most cases, the procedural enforcement of an exemption claim takes place by means of a performance suit. The enforcement of an exemption judgment is based on the regulations for a justifiable act ( § 887 ZPO).

example

  • Someone has the neighbor's car towed away without their knowledge in order to protect it from flooding ( management without an order ).

According to § 683 BGB, he can demand that the neighbor reimburses him for the expenses incurred as a result. If he settles the claim of the towing company he has commissioned (third party creditor), he can consequently demand payment of the amount incurred from his neighbor. As long as the towing company's claim has not been settled, he cannot (yet) demand payment. Rather, he can demand exemption (exemption) from the obligation entered into from the neighbor according to § 257 sentence 1 BGB.

As a rule, the neighbor will pay the claim directly to the towing company for this purpose; However, it is up to the neighbor how he wants to effect the exemption. For example, he can also negotiate with the entrepreneur about the waiver of the claim or offsetting against a claim due to the neighbor against the entrepreneur.

Claims for exemption from other obligations

Exemption claims can also be justified regardless of claims for reimbursement of expenses. This can arise when a partner leaves ( Section 738 (1) sentence 2 BGB) or under certain conditions as the guarantor's right to be released from the guarantee ( Section 775 (2) BGB) or in the case of claims for damages based on the principle of in rem restitution ( Section 249 Paragraph 1 BGB). A practically important application is also liability insurance ( Section 106 VVG ).

Nature of the right to exemption

The special service content - exemption from an obligation - distinguishes an exemption claim from other claims. Above all, it serves to avert an impending loss of the exempting believer's assets. The exemption claim is directed towards natural production and is therefore not similar to a payment claim, especially since the exemption debtor can, as explained, bring about the exemption success differently than through payment to the third party.

literature

  • Georg Bischoff: The right to exemption - material and procedural problems. In: ZZP Vol. 120 (2007), pp. 237-251
  • Niels Danylak: Possibilities for the indemnity debtor to claim against the indemnity creditor in the event of foreclosure attempts by the main creditor. In: ZVI, 2019, pp. 254–259
  • Walter Gerhardt: The right to release: at the same time a contribution to the right to release under labor law. Schwartz Verlag, 1966
  • Gerald Görmer: The enforcement of exemption claims in civil litigation and enforcement proceedings (Europäische Hochschulschriften / 2; Bd. 1232). Peter Lang Verlag, Frankfurt / M. 1992, ISBN 3-631-44872-4 (also dissertation, Frankfurt / M. 1992)
  • Gerald Görmer: The security provided by the exemption debtor . In: NJW , Vol. 65 (2012), Issue 5, pp. 263-265, ISSN  0341-1915