Order paper
Order papers are registered securities that can be transferred by agreement , endorsement and surrender . The term “order” in this context means that someone gives the order for the transfer.
General
Bearer papers can be transferred by simple agreement and handover - like movable property. This gives them the highest marketability. In the case of order papers, this marketability is already restricted because a mere agreement and handover is not sufficient for the effective transfer of the rights from an order paper. Rather, its transfer must be proven by a note to be attached to the paper to be transferred.
According to the legal certificate theory, a liability agreement is usually required for a bearer or order document to arise .
species
In terms of securities law, a distinction is made between born and awarded order papers. In the case of born order papers, their status as order papers is envisaged by law, while awarded order papers can only be structured by adding a positive order clause to order papers; without an order clause, they are recta papers . There is no law in Germany in which the rights from order papers are generally applicable for all order papers. Rather, the legislature has decided to leave these regulations to special laws, so that the Check Act (ScheckG), Exchange Act (WG), Stock Corporation Act (AktG) or the Commercial Code (HGB) contain individual provisions that deal with this type of security and its transfer. The transfer note in the form of an endorsement, which is essential for order papers, is predominantly regulated in the WG, the provisions of which are also applicable to the other order papers, provided that they are compatible with their legal nature.
Born order papers
By law, this type of securities belongs to the order papers without the need for an order clause. The check is by law an order document ( Art. 14 ScheckG), which also applies to the exchange ( Art. 11 , para. 1 WG), the interim or intermediate certificate ( § 10 , para. 3 AktG) and the registered share ( § 68 AktG ). By referring to the provisions for registered shares, investment certificates may also be issued as order papers ( Section 95 (1) KAGB). According to this, investment certificates can be made out in the name of the bearer (in which case they belong to the bearer instruments) or in names (in which case they are order instruments). Bearer papers are transferred by real agreement and handover , order papers require an endorsement . If they are made out to the holder, they must be securitized in a global document and the right to individual securitization is excluded; if they are made out in their name, § 67 AktG and § 68 AktG apply accordingly.
In order to increase the marketability of the check, especially in the banking sector, the application of the bearer clause ("or to bearer") turns the check into a bearer check and thus a "technical" bearer paper. This is also possible for bills of exchange, interim certificates and registered shares by attaching a blank endorsement to them . Interim certificates are provisional documents which are issued after the establishment of a stock corporation or in the case of a capital increase before the final shares are issued, as long as the AG or the capital increase are not entered in the commercial register ( Section 10 (3), Section 68 AktG). Despite their designation, registered shares are not registered (Rekta) but rather order papers ( Section 68 AktG). They can be transferred by endorsement (also known as blank endorsement). The transfer of ownership can be made more difficult by the Articles of Association ( registered share with restricted transferability , Section 68 (2) AktG). Since only those who are entered in the share register count as shareholders, they must be deleted and re- entered when the shares are transferred. Registered shares with restricted transferability are required if the equivalent value is not paid in full upon issue and the shareholder has a payment obligation. Investment certificates are unit certificates which certify the legal status of the unit holder vis-à-vis the investment company.
Corrected order papers
While special laws such as the Check Act, the Bill of Exchange Act or the Stock Corporation Act provide for these securities to be designed as born order papers, the awarded order papers are regulated without exception in the HGB . This includes the six commercial order papers of Section 363 HGB. The selected order papers are finally listed here. These are the (transport) insurance policy , the loading slip , the (order) warehouse slip , the commercial obligation , the commercial instruction and the bill of lading . The bill of lading, the warehouse receipt and the bill of lading belong to the so-called traditional papers , in which the legitimate owner of the paper is also the owner of the goods securitized therein. In addition, the order bonds of the Federal Republic of Germany and the federal states are approved order papers because they are counted among the commercial obligations. According to the prevailing opinion today , this also applies to the traveler's check, which is not a check despite its name.
endorsement
An endorsement (endorsement) is a legally required written transfer note on the order paper, the functions of which are finally regulated in the Bill of Exchange Act. The bill of exchange law was selected for this because the bill of exchange is the most typical order paper. A complete chain of endorsements, which must be traced back to the issuer of the document, legitimizes the endorser as the authorized holder of the order paper to demand performance from the issuer or debtor of the order paper. The person transferring the order paper is called an endorser, the recipient from the endorsement is called an endorser. The endorser can assert all rights from the order paper in his own name, whereby the purchase in good faith is protected ( Art. 16 Paragraph 2 WG, Section 365 Paragraph 1 HGB). The traditional papers represent the goods securitized in them, so that their transfer by endorsement also transfers ownership of the goods.
Functions of the endorsement
A full endorsement has three functions:
- Transport function ( Art. 14 WG): Through the endorsement, all rights (especially property) from the order paper are transferred from the previous creditor (endorser) to the new owner (endorser).
- Guarantee function ( Art. 15 WG): Every endorser (in the case of a change also the issuer of the bill of exchange) is liable to every future legal owner for (accepting the bill of exchange and) paying the documented debt.
- Legitimation function ( Art. 16 WG): The owner of the order paper is deemed to be the authorized person, who can show an uninterrupted chain of endorsement on it, even if the last endorsement is a blank endorsement .
If the name of the endorser is not given, it is a blank endorsement ( Art. 13 para. 2 WG or Art. 16 para. 2 SchG); it consists in the mere signature of the endorser. Every holder of a blank endorsed order paper is then considered an authorized person, further endorsements are no longer required.
Order clause
An order is a special note that is added to the paper and relates to its transferability. Only the positive order clause ("for us to the order of ..." or a similar comment) turns approved order papers into order papers. In the case of born order papers, the positive order clause is assumed by law to be present; Born order papers without a positive order clause can therefore not exist.
In the case of the awarded order papers, however, the order clause is not required by law, so that, in legal transactions, they are only designed into order papers by attaching the positive order clause. If the order clause is missing, these papers are technically recta papers. Therefore, a positive order clause must be attached when they are issued. If, on the other hand, the recta clause (or "negative order clause") is attached ("not to order") in the case of approved order papers, then it is also technical recta papers.
"Technical" bearer papers
Permissible forms of endorsement can give order papers the character of bearer papers. If a blank endorsement is attached to the order papers, the endorser can, in turn, transfer the order paper by simply agreeing and handing it over, as is the case with genuine bearer papers. In the case of a blank endorsement, the endorser is not specifically named, so that the actual function of an order document, to bear the name of the respective holder, is overridden. As a full endorsement, the blank endorsement fulfills all three functions of the endorsement, i.e. legitimation function, transport function and guarantee function. The law equates the order papers with the bearer papers if they are provided with a blank endorsement ( Section 234 BGB for the provision of security, Section 1084 BGB for consumable items, Section 1814 sentence 3 BGB for deposit or Section 2116 (1) sentence 3 BGB in inheritance law ).
"Technical" recta papers
Born and awarded order papers are technically converted into recta papers through the recta endorsement ("for us to X, but not to order") and can therefore no longer be transferred through endorsement, but only through assignment . With the recta endorsement, the endorser wants to exclude that someone other than the named endorser may demand performance from the debtor. A typical example is the Rekta change, which according to Art. 11 Para. 2 WG can only be transferred by means of assignment. When switching, the rectal endorsement also limits the endorser's liability to the endorser. Approved order papers that do not contain an order clause or even a recta clause are also technically converted into recta papers.
Assertion of the claim
Assertion of the claim from an order document means that the legitimized holder of the paper can, when the right enshrined in it becomes due, demand his right to performance from the debtor in return for the delivery of the document. The possession of the paper and a complete chain of endorsements, which must be traced back to the issuer, justify the unreserved assumption of the material entitlement of the holder. The debtor may only raise objections to the owner, such as those arising from Section 364 (2) HGB and Art. 17 WG; Both regulations - one is positive, the other negative - are congruent.
- Document objections : the debtor can object, for example, to the lack of due date of the performance from the content of the document;
- Validity objections : of the instrument is debtor may be about the lack of capacity object of an endorser or the incompleteness of Indossamentenkette;
- Personal objections : the debtor declares the set-off with a counterclaim.
Loss of the order paper
If the document has been lost, however, the right enshrined in it is not lost. Necessary for the assertion of rights under lost to order, then a cancellation after completion array method . The exclusion judgment of the declaration of nullity replaces the lost order paper and gives the holder the original legal status ( § 1018 ZPO ). The public notice procedure is provided for by law for order papers.
If an order document is lost (e.g. due to theft or loss), the right can only be asserted against the debtor on the basis of an exclusion judgment ( § 1018 ZPO) obtained in the public notice procedure ( § 946 ff. ZPO) . This is the consequence of the right of the debtor that he is only obliged to perform if the document is handed over to him by the owner.
See also
literature
- Hans Brox : Commercial and Securities Law. 18th, revised edition. Beck, Munich 2005, ISBN 3-406-54078-3 .
- Richard Holzhammer: General commercial law and securities law. 8th, improved edition. Springer, Vienna et al. 1998, ISBN 3-211-83156-8 .
