Decree (private law)
The decree , in German law a decree contract , in Switzerland and Austria renunciation , in Austria also waiver , is a free form contract between the creditor and the debtor , with which certain debts of the debtor are waived as a fulfillment surrogate .
General
In Germany and all other countries, the law assumes that debts are to be repaid to the obligee in accordance with the contract. In Section 488 (1) BGB, it combines the granting of a loan with a repayment obligation, which is the debtor's main obligation to perform. But not only the contractual repayment brings debts to the extinction, but also the waiver contract ( § 397 Abs. 1 BGB). It leads to the debt being wholly or partially canceled, i.e. not having to be repaid. According to the text of the law, the debt is waived and not a requirement , as is often read; the extinction of the claim is only a consequence of the extinction of the debt. The claim ( obligation in the narrower sense) expires with this contract. The entire contractual relationship ( obligation in the broader sense ) can only be canceled by means of a termination agreement.
requirements
The decree presupposes a contract and is in no way made by unilateral waiver by the obligee. The unilateral waiver, as it is possible for rights in rem in property law, is ineffective when issued (Section 397 (1) BGB). The legal definition in Section 397 (1) of the German Civil Code (BGB) also makes it clear that only an obligation can be terminated by a waiver contract. Under obligation is contractual (such as sales contract or loan agreement), legal (such as unjust enrichment ) or very similar to business obligations (as culpa in contrahendo ) to understand. Can be adopted also only one fault , that is a liability of the debtor. In everyday language, debt is usually understood to be a debt , but an employee's duty to work is also a debt in the legal sense. If the employer declares in a letter of termination that the employee no longer needs to fulfill his duty to work, but should still receive his remuneration, then it is a waiver contract.
The decree means that the obligee is no longer allowed to demand the contractually stipulated consideration from the debtor and therefore the obligee has provided a unilateral contractual performance. The waiver contract is legally a disposition and not a contract of obligations because it directly transforms rights. Therefore, the adoption is kondizierbar if the law of obligations causa , as a comparison , is eliminated.
If a waiver contract is concluded between the obligee and only one of several joint and several debtors , the waiver also applies to the other debtors if the waiver contract should also cancel the entire debt relationship ( Sections 423 , 397 BGB).
Debt relief
The most common use case is the term known in everyday language of debt relief . This is primarily aimed at loan agreements in which the creditor can no longer count on the proper servicing of the debt due to the poor creditworthiness of the debtor .
Balance sheet presentation
The legally effective decree leads to a profit-reducing / loss- increasing depreciation on receivables in the balance sheet of the obligee, and for the debtor to a profit-increasing / loss-reducing write-up on liabilities .
Negative acknowledgment of guilt
If the obligee contractually acknowledges with his debtor that a debt relationship does not exist, this is a negative acknowledgment of debt within the meaning of Section 397 (2) BGB. It has the same legal effects as the waiver contract ( see also: acknowledgment of debt ).
See also
- § 1444 ABGB , Austria
literature
- Michael Timme , Enactment and waiver in civil and commercial law , Hamburg 2011
Individual evidence
- ^ Christian Berger, legal restrictions on disposal , 1998, p. 9
- ↑ LAG Berlin-Brandenburg, judgment of August 24, 2012, Az .: 13 Sa 499/12
- ^ Dieter Medicus, Law of Obligations I , 1990, p. 132
- ^ Jacob Joussen, Law of Obligations General Part , Volume 1, 2008, p. 469
