Surrogation
In civil law, a surrogation (lat.) Represents a legally regulated special way of replacing an asset with another object or a replacement claim and is conceptually derived from surrogate (= replacement).
Example: The entrepreneur U marries the house owner H. U moves in with H in the house owned by H, in which H's washing machine is located. When the washing machine breaks down after a while, a new washing machine is bought from the common household budget. In the event of a later divorce, the question arises: Who owns the new washing machine?
The solution in the example resulted from § 1370 BGB old version (repealed since September 2009): This said that household items that are purchased in place of items that are no longer available or that have become worthless become the property of the spouse to whom the no longer available or worthless had heard objects that had become. Due to the legally provided surrogation, the jointly acquired object becomes the sole property of the owner of the lost object.
The replacement of an object by another, for which the law prescribes a substitution, can be based on various circumstances: wear and tear or destruction, damage or deprivation through a breach of contract or tort.
Legal regulations on a surrogation can be found in different parts of the BGB, in the law of obligations, in property law, in family law and in inheritance law. In particular, it concerns cases in which a certain object belongs to a whole (e.g. the inventory of a property in the case of usufruct in accordance with § 1048 Paragraph 1 BGB) or a special fund (e.g. in the case of a company under civil law : § 718 Para. 2 BGB); in the case of collective property in the comparatively rare community of property : § 1473 Paragraph 1 BGB, or in cases in which a real right to the original object existed and is continued by virtue of surrogation in the replacement object (as in the case of usufruct according to § 1046 Paragraph 1 BGB and in the Lien according to Section 1219 Paragraph 2 Clause 1 BGB). In inheritance law, there are surrogation provisions in Section 2019 (1) BGB (estate owner), Section 2041 ( community of heirs ), Section 2111 (in the case of prior heirs in the interests of the subsequent heirs ).
Regardless of the parts of the BGB in which the individual cases of surrogation are regulated, a distinction is made between two different types: real surrogation and contractual surrogation.
Material surrogation
In the case of a tangible surrogation , the most relevant case in practice, the law provides (for example, shown in the regulation of § 1473 BGB for the common property, a special asset in the marital community of property) that something that belongs to the common property on the basis of a Right or as a replacement for the destruction, damage or deprivation of an item belonging to the common property or acquired through a legal transaction relating to the common property, falls directly into the common property. The surrogation here has an immediate material effect; a special act of transference is unnecessary. This regulation of the automatic transfer bypasses the regulations on the transfer of ownership, for example according to § § 929 ff. BGB. In addition, the legal regulations on surrogation can avoid difficulties of proof. Once the ownership of the original item and the fact that a replacement has been obtained have been established, no further proof of ownership is required.
Surrogation also applies to claims, whereby it should be noted that only the claim is surrogated, but not the entire contract is drawn into the fund. The surrogation is not a case of the legal transfer of contracts .
Obligatory law surrogation
In Germany, the substitution under the law of obligations includes the case of Section 285 of the German Civil Code. If the obligation of the debtor to perform (e.g. the seller to deliver the used vehicle sold) no longer applies due to impossibility (e.g. because a third party destroyed the vehicle) and if the debtor therefore obtains a replacement from the third party or if he has a claim for damages against the third party, then the obligee (here: the buyer) can demand surrender of the replacement or assignment of the claim for compensation. In contrast to real surrogation , here the surrogation does not occur immediately, but only claims under the law of obligations for the surrender of the surrogate arise.
Another case of surrogation, which is only effective under the law of obligations, is in the lien: Section 1258 (3) BGB.
