Delegation

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The delegatio (Latin for “payment order”) was understood in classical Roman law to mean an instruction or authorization .

Definition

The delegatio, as a legal term in the Code of Obligations, has its original meaning in the word “delegare”, which is derived from the derived “legare” (= to send as a messenger, to make a legate). The term delegare, in turn, has a double meaning, once in the echoes of legare in the general sense with the meaning “transfer, assign, commission, entrust, send” and in a more technical use in the legal sense “instruct, commission, transfer”. This special meaning in legal language developed from the initially more common general usage and finally found v. a. in the law of obligations as "delegatio" collection (in addition to procedural and tax law uses).

In addition to delegare, the terms “ ieaner ” and “ mandare ” are also used in various sources in the sense of instruct or authorize.

Basic idea

The delegatio is basically about a simplified system of debt settlement in a three-person relationship. Two bonds are canceled by one act . The persons involved are each:
an instructing (delegant), an instructed (delegate) and an instruction receiver (delegate).

Legal relationships of the parties involved

There are different legal relationships between the named persons :

Coverage ratio (delegant - delegate)
The instruction of the delegant is (as a rule) covered by a debt of the delegate.

Redemption
ratio (delegate - delegate) This ratio is actually paid.

Currency ratio (delegant - delegate)
The value shift takes place in this relation.

Delegatio Verhaeltnisse.png

use cases

Within the delegatio, a distinction is made between two different use cases: payment (delegatio solvendi) and entering into a liability (delegatio obligandi). In the case of the latter, an attempt was made to explain it as the “actual delegation”, but this failed due to the lack of sources.

delegatio solvendi

With the payment order (delegatio solvendi) the delegate pays the delegate in order to be released from his debt to the delegant in the normal case. This is conditional on the delegate being the debtor of the delegant. If the delegant intends to repay his own debt to the delegate (which is why he authorizes the delegate) the delegate must be his creditor. If this is not the case, a delegatio solvendi is still possible, e.g. B. in the area of ​​donation, which does not presuppose an obligation.

The simplification of debt settlement mentioned in the basic idea (see above) occurs, since the two necessary payments (delegant to delegate and delegate and delegant) are replaced by a service (delegate to delegate) that causes both obligations to expire (value date). and coverage ratio are settled by the payment in the redemption ratio). This new requirement usually led to the redemption of the old one and thus resulted in novation .

According to the prevailing opinion, the high classic Celsus has put forward the theory in this context that the payment from delegate to delegate is actually a payment from delegate to delegant and then delegant to delegate. Although it is controversial that Celsus set up this so-called “passage theory”, it is still an important example of the legal second thought figure (cf. Wieacker in FS Erich Wolf, 1962, 421 ff.).

delegatio obligandi

With the obligation instruction (delegatio obligandi) the delegate undertakes to the delegate with the authorization of the delegant. This is also where the decisive difference to the delegatio solvendi lies, since initially there was no performance, but only an obligation to perform.

The delegatio obligandi in turn has two forms: active and passive delegation.

Active delegation

In the case of the active delegation, there is a change of creditor , i. H. in the event that the delegant is the delegate's creditor, the delegant can transfer his existing claim to the delegate.

It is important that this must always be done by an instruction from the delegant, as he loses his claim to the delegate and thus consent to this type of delegation is required.

Since Roman law saw no other possibility for the assignment (cf. assignment ) of a claim, this active delegation was of particular importance.

Passive delegation

In the case of the passive delegation, there is a change of debtor , i. H. the delegate assumes the debt of the delegant (reus) and thus undertakes to the delegate (creditor) as the new debtor (alius reus). This is probably also the most common case of the delegation.

It is also important that the delegate designated as alius reus (different / new debtor) does not necessarily have to be the debtor of the delegant. This records the cases of donation. The consent of the old debtor (delegant) is therefore not required , since he does not lose a claim, as in the active delegation, but gets his debts paid (see also Art. 1274 Civil Code). The old debtor is thus also released from his performance obligation towards the obligee.

Double delegations are even conceivable, so that a delegate can transfer the claim obtained on the basis of the delegation to another delegation and thus transfer the new debtor to his creditor in his or her place as the delegate.

Execution of the delegatio

The delegatio was usually concluded by stipulation , i.e. by making a formal promise, but could also be carried out informally, without express authorization . The delegatio remains in place if it is done with the will of the delegant, i.e. if it is tacitly permitted, whereby in the area of ​​passive delegation it can even be performed against the will (see above).

If a stipulation has taken place, a distinction can be made between abstract and titled stipulation.

The stipulated stipulation applies to passive and active delegations. For example, such Stipulationsformel could with Novation in the field of passive delegation read something like this: "quod mihi debet Primus, mihi dare spondes?" Or when active delegation : "quod Primo debes, mihi dare spondes"

The abstract stipulation is mostly used in delegations that are not based on an obligation and therefore no novation is possible. So z. B. with a double donation with the words: "centum mihi dare spondes?"

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