Subrogation

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In jurisprudence, the transfer of a claim or any other right from one creditor to another creditor is referred to as assignment of a claim (also: assignment , Latin cessio "to cede") .

General

The BGB not only provides for the transfer of movable property and land, as well as rights equivalent to land , which takes place through handover or handover surrogate (§ § 929 ff. BGB) or by conveyance ( § 925 BGB) and entry in the land register ( § 873 BGB). Rather, claims and other rights can also be transferred through assignment . A distinction is made between the legal subrogation according to § 412 BGB; (Legal session) and the legal transfer of claims according to § 398 BGB.

Legal transfer of claims

The legal transfer of claims takes place through an assignment contract , whereby a claim by its creditor ("assignor") changes to a new creditor ("assignee"), who thereby becomes its owner ( § 398 BGB). As the legal successor with all rights and obligations, the assignee takes on the legal position of the assignor who is no longer a creditor after the assignment.

Statutory subrogation

A legal subrogation is used when the law determines the transfer of rights from the assignor to the assignee. According to Section 412 of the German Civil Code (BGB), the provisions on the legal transfer of claims apply to the legal transfer of claims.

The BGB finally enumerates the types of legal claims. Anyone who loses rights to property through foreclosure may satisfy the creditor; in that case the claim against the enforcement debtor is transferred to him ( Section 268 (3) BGB). If the joint and several debtors pay for the joint debt, the claim of the obligee is automatically transferred to him or her ( Section 426 (2) BGB). If a claim is made against the surety in the case of a surety ( § 774 BGB) by paying for the main debtor, the main claim is transferred to him. The same applies to mortgages ( § 1142  ff. BGB) if the property owner pays for the debtor or in the case of the right of lien ( § 1225 BGB) when the pledgee pays for the debtor, whereby the pledge is redeemed in accordance with § 1249 BGB. If a relative pays maintenance instead of the person liable for maintenance, he / she is granted exemption in accordance with Section 1607 (3) BGB.

In addition to the cases regulated in the BGB, legal cessions are contained in special laws, for example in Art. 47 Para. 3 WechselG or in Section 86 VVG ( insurer ). In the latter case, there is a legal subrogation if an insurer settles an insured claim of the policyholder and this is transferred to the insurer by law. There are also legal cessions in § 6 EFZG ( employer ) or in § 43 RVG . The social law provisions in § § 115  et seq. Must also be observed . SGB ​​X , Section 94 SGB ​​XII , Section 187 SGB ​​III or Section 7 Advance Maintenance Act . In the area of ​​social law, the case often arises that social service providers, through an administrative act ( § 93 SGB ​​XII), transfer impoverished social recipients for these claims to the return of a donation ( § 528 BGB) and then assert these to cover their costs.

The transfer of claims by virtue of an act of sovereignty, for example from § 835 ZPO, is also equivalent to the legal session .

Transfer of collateral

With both types of claim transfer , the original securities ordered for the claim are automatically transferred to the assignee in accordance with § 401 BGB without their separate transfer being required.