When issuing securities, the question arises as to how the right evidenced in the document can be transferred to another holder of the securities so that this or subsequent rightful holder can later be able to assert the right of the document with the issuer. In order for a documented property right to arise, a document must first be drawn up. However, this creation of the document is not sufficient to legally create the securitized property right. Rather, a grant agreement is required to justify the rights from the document. Through him, the resulting property right is transferred to the owner. The securitized right does not arise from the issuer's creation of the certificate alone. This topic is dealt with by three theories of securities law (creation, contract and legal certificate theory), whereby legal certificate theory has established itself as the dominant opinion . According to the legal certificate theory, a liability agreement is usually required for a bearer or order document to arise. In addition to the issuance, an issuance agreement is required to establish the securities obligation.
The grant agreement is not formally concluded, but comes about through implied action , such as handing over the certificate from the exhibitor to the first owner. A grant agreement consists of a contractual and a property law component. The law of obligations states how a liability is established in a security, the property law how the security is transferred from the issuer to a holder. The issuing contract therefore includes the exhibitor's willingness to undertake to provide the services documented therein on presentation of the issued document, and the in rem agreement required upon handover to the first owner in accordance with German Civil Code (BGB) so that the owner has the necessary ownership status to assert the property rights attained.
If the exhibitor deliberately renounces his certificate by handing it over to an owner, the issuing contract is concluded. Only by handing it over does the issuer of the security certificate create an external effect.
Missing grant agreement
A grant agreement, on the other hand, did not come about in the event of dissent , successful contestation and nullity . This also applies if the security has been stolen from the issuer, has been lost or has been placed on the market without his will. In that case, however, the second owner effectively acquires from the unauthorized first owner if the second recipient accepts the existence of an issuance agreement in good faith . Bad faith is knowledge or grossly negligent ignorance of the lack of a grant agreement. The missing grant agreement is replaced by the legal certificate. The rules of §§ 929 ff. BGB apply analogously, i.e. also BGB with regard to the purchase in good faith from unauthorized persons . The owner of a bearer paper acquires property through agreement and handover, according to § 932 BGB also from unauthorized persons, according to § Paragraph 2, Paragraph 1 BGB even if the paper has been stolen, lost or otherwise lost . According to Paragraph 1, Clause 2 of the German Civil Code (BGB), the exhibitor is released even by paying the unauthorized owner.
In the case of bearer papers ( bearer bonds , bearer shares ), it is the issuer who implicitly brings about an issuing agreement. This is different with the born order papers of bills of exchange and checks . As a rule, an issuing contract is created when the bill issuer hands over the bill for acceptance to the drawee . Then the drawee's signature establishes his acceptance obligation, which is part of the contract under the law of obligations. In the event of a change, the issuing contract is also concluded when the drawee submits a blank acceptance, without the exhibitor having to sign. A blank endorsement is also based on a grant agreement. Only the endorsement as an endorsement note with the concurring will of the endorser and endorser makes the latter the new creditor of a bill of exchange ( WG). This is applicable to all endorsable securities. If the issuer hands over the accepted bill of exchange to a bill acceptor, this also constitutes a submission agreement.
In the case of a check, the issuing agreement is triggered by the check issuer when he transfers the check to a check recipient. As provided for in § 935 (2) BGB for bearer papers,SchG also permits the purchase of lost checks in good faith. A loss within the meaning of Art. 21 SchG occurs if a check has got into the wrong hands without a legally effective issuing agreement. Part of the will of the issuer is the fact that only persons who are authorized by means of an issuing agreement can submit a check. Unauthorized submitters gain possession of the check without a delivery agreement and are not authorized to dispose of it.
In the case of bearer and order papers, once they have been handed over to the first holder, it is no longer up to the issuer to whom the security is transferred. The only exception is the restricted transfer registered share . Otherwise, every legitimate holder of a security can demand the performance promised in the security from the issuer by presenting the certificate (exceptions: check and bill of exchange, here the drawee is obliged to pay; Para. 1 WG). Since it is a matter of monetary debts, the exhibitor has to provide the promised service at his own risk and expense to the creditor at his place of residence or business ( (1) BGB). However, this regulation on the place of payment does not make the debt an obligation to deliver , but rather, because the place of performance remains with the debtor , a "qualified obligation to send". In the case of checks and bills of exchange, according to Para. 3 SchG and Para. 3 WG, the place of payment is the drawee's place of business.
Objections of the exhibitor
A security in circulation grants every legitimate holder the right to assert the property rights evidenced in the paper with the issuer. Therefore - and because of the protection of marketability - the exhibitor has only a few objections according toBGB:
- Objections in kind : effectiveness of the document (defective issuance, Section 793 (2) BGB; defects in the document), objection to the ineffective declaration ( legal or business capacity of the exhibitor, falsified signature , lack of awareness of the declaration, other nullity: immorality according to ( ) 1 BGB, usury according to Section 138 (2) BGB, objection to the lack of or no longer applicable grant agreement);
- Personal objections : objection to a reciprocal right such as set-off , deferral not documented , right of retention , defense of fraud .
The issuer may no longer object to the ineffectiveness of the certificate against the second or further holder if he has brought the certificate into circulation in a legally effective manner and has thus given the legal appearance of a valid certificate. These objections correspond to Art. 17 WG and Art. 22 SchG and therefore apply accordingly to bills of exchange and checks. If the issuer of securities justifiably asserts these objections to the presenter of the document, the issuer's obligation to perform is permanently excluded.
- Roland Schmidtbleicher, Die Anleiheberbeligermehrheit , 2010, p. 14
- Boris Schinkels, The Distribution of Liability Risk , 2001, p. 41
- Wolfgang Fickentscher / Andreas Heinemann, Schuldrecht , 2006, p. 687 ff.
- BGH, judgment of March 24, 1992, Az .: XI ZR 142/91
- Peter Bülow, Heidelberg Commentary on WG / SchG , 2004, p. 84
- Guido Toussaint, The Law of Payment Transactions at a Glance , 2009, p. 154
- BGHR § 263 Abs. 1 StGB, deception 22
- BGH, judgment of December 11, 2008, Az .: 5 StR 536/08
- Kurt Schellhammer, BGB according to claim bases , 2011, p. 511