Covenant (England and Wales)

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In England and Wales, a covenant is a contract law and property law institute. The covenant is a unilaterally binding promise made in the special private deed form . If the covenant is of a material nature, i.e. it is accompanied by an encumbrance on the property, it is called a real covenant . In German law, this kind of covenant with a real load comparable or real bond. In the case of the convenant under the law of obligations, a distinction is again made: The usage or positive covenant ( affirmative covenant ) obliges the debtor to make an individual payment, while the covenant or negative covenant ( negative covenant ) obliges the debtor to refrain from performing a line.

Legal history

Law Historically covenants solemn commitments that the only in the written form deed of or as agreement or clause deed were registered and therefore un consideration ( consideration ) to the action for damages for covenant -Verletzung ( action of covenant could be enforced). The person making the promise or the debtor is referred to as the covenantor and the recipient of the promise or the obligee as the covenantee .

Covenants and Conditions

In contrast to conditions ( conditions ), as a condition precedent ( condition precedent prevent) an occurrence of the contract, or as a dissolving condition ( condition Subsequent ) the contractual relationship immediately terminate, are covenants only normal contract modalities in the form of compensation ( damages ), service fulfillment ( specific performance ) or court available ( injunction ) can be sued.

Restrictive covenants as real burdens

In English law, according to the principle of the relativity of the contractual relationship ( privity of contract ), contracts can only bind the respective parties. There is an exception to this for real covenants . Negative real covenants are known as restrictive covenants . This legal institution, developed by equity in Tulk v Moxhay (1848) , leads to a reification of contractual agreements in the case of negative covenants on land , "the restrictive covenant runs with the land" . H. the restrictive covenant grants the person entitled to the real burden a real resale right against legal successors of the property owner.

For unregistered land that is not listed in the land register ( HM Land Registry ), there is a restrictive covenant - as always under equity - if the third party cannot make the objection in good faith. If, for example, a sub-tenant ( sublessee ) has knowledge of a covenant in the main rental agreement ( headlease ) between the main tenant ( lessee ) and the landlord ( landlord ), this also acts against him and the landlord can obtain an injunction against him.

literature

  • Margaret Wilkie, Peter Luxton, Juill Morgan, Godfray Cole: Landlord and Tenant Law . 5th edition. Palgrave, 2006, ISBN 978-1-4039-1754-6 , 4 Covenants and conditions.
  • Dominik Nagl: No Part of the Mother Country, but Distinct Dominions. Legal Transfer, State Formation, and Governance in England, Massachusetts, and South Carolina, 1630–1769 . 1st edition. LIT, Berlin 2013, ISBN 978-3-643-11817-2 , pp. 217–224 ( de.scribd.com - Biblical covenant of grace, political social contract, and covenant theology in North America).