Joint debt

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The joint debt (also "liability to the undivided hand") is a legal term of German law that describes a joint debt of several legal subjects with regard to a performance from a uniform obligation , whereby each debtor is obliged to provide the entire performance, but the creditor is only entitled is to challenge it once. The joint debt is regulated in §§ 420 ff. BGB.

The total debt is to be distinguished from the partial debt, in which there is a proportional performance obligation with regard to a divisible debt, and also from the joint debt partnership, in which the debt can only be paid jointly by all debtors.

term

The term joint and several debt is a translation of the Roman legal term of the correa obligation , which, however, includes the cases that were called solidarity obligations in common law .

Creation of joint and several debt

A joint debt can arise by law or by contractual agreement . In the German Civil Code , joint and several liability is arranged in various places in the law. For example, several tortuous perpetrators are jointly and severally liable , irrespective of whether they caused the damage as jointly acting accomplices ( § 830 BGB) or as secondary perpetrators acting independently of one another ( § 840 BGB). Section 431 BGB stipulates joint and several liability if several people owe an indivisible service. Also of great importance is Section 128 of the German Commercial Code (HGB), which stipulates that several partners in a general partnership are jointly and severally liable for corporate debts. This standard is also applied analogously to shareholders of a BGB company . Further important arrangements for total debts can be found in Section 613a (2), Section 769 ( co-guarantors ) and Section 1357 (1) (spouses) BGB. There are further cases of joint and several debt relationships regulated within and outside of the BGB. For example, several owners of an apartment are jointly and severally obliged to pay the broadcasting fee via Section 2 of the State Treaty on Broadcasting Contributions.

Contracting parties can also expressly contractually agree on joint liability. If there is no legal regulation or an express contractual regulation, it must be determined by interpretation whether or not a joint debt should exist. There is agreement that the minimum conditions can be taken from § 421 BGB, which are absolutely necessary for the existence of a joint debt. For example, there must be the fact that several debtors owe the obligee a performance and the obligee may demand this in full from each debtor. It must also be made clear that the service is only due once.

It is disputed whether other conditions must be fulfilled in addition to these written requirements in order to be able to accept a joint debt. In any case, there is currently agreement that the reason for guilt does not have to be uniform. For example, a joint and several debtor can owe compensation for the offense , while another joint and several debtor is liable for the same interest due to a breach of contractual duty. According to the case law of the Federal Court of Justice (BGH), it is not necessary that all joint and several debtors have an identical performance interest. An architect and a building contractor are jointly and severally liable for breaches of contractual duty with regard to the same building, even if the building contractor is liable for subsequent performance and the architect for compensation.

The prevailing doctrine and the jurisprudence, on the other hand, do not have joint and several guilt if the debtors concerned are not equally liable. The requirement of “equality” thus replaces the community of convenience previously required by case law. Equal status is to be denied if one of the debtors has subsidiary liability. So are z. B. The surety and main debtor are not joint and several debtors, as there is a tiered relationship and the main debtor is primarily to be claimed. Therefore, the company and its partners are not jointly and severally debtors, because the company is primarily liable. An insurer is also only liable for damage caused by the insured person. It is controversial whether an enrichment debtor is equally liable to a debtor for damages or a managing director without an order . In contrast alone, the fact that a joint debtors in the internal relationship has to bear the loss alone, not even for an equal temperament fault. The BGH affirmed that the obligations of a horse seller who delivered a defective horse and a veterinarian who did not recognize this defect during his examination were equal. Parts of the literature reject the requirement of equality, however, since they do not consider the criterion to be necessary in order to arrive at appropriate results. For the requirement of equal status, it is stated that only this criterion enables the cases of joint and several debt to be differentiated from the cases of § 255 BGB. This assures a paying debtor the assignment of compensation claims against third parties who are obliged to pay compensation. In addition, it is stated that some legal consequences of a joint and several debt do not seem appropriate if a debtor is only less liable.

Section 427 of the German Civil Code (BGB), which contains a rule of doubt in favor of the acceptance of a joint liability in the case of a joint contractual obligation, is of great importance for the acceptance of joint and several debt by way of interpretation . If several debtors jointly undertake to provide a service, it must first be determined through interpretation whether a joint debt or another form of debtor majority is desired. If such an interpretation is not possible, the existence of a joint debt is assumed. The party that denies the existence of a joint debt must therefore prove in the process that there is no joint debt.

Differentiation of the total debt from other debtor majorities

Partial fault

From a partial debt is expected when several debtors exist, the creditors of these as well as in external relations can only claim the amount that the debtor has to bear internally. The position of the creditor is thus significantly weaker than in the case of the aggregate debt, since in order to receive the full amount he has to sue each debtor and bears the risk of bankruptcy of each debtor.

Community guilt

There is also no joint debt if the performance can only be performed jointly by all debtors, since the obligee has no interest in performance by only one debtor. For example, if a believer wants to attend the booked concert of a music band, the singer alone cannot fulfill the debt. Thus the rules of joint and several guilt appear inappropriate.

Joint debt

In the case of joint debt, the debtors do not owe each for themselves in the external relationship, but only as a whole. This means that the creditor can only demand performance from the entire hand. So he cannot stick to a single debtor and demand fulfillment from him, but he must call on the community as a whole to perform .

Cession recourse

Ultimately, there is no case of joint and several debt if a debtor who is liable for damages allows his creditor to assign his claims in relation to the item to be replaced in accordance with Section 255 of the German Civil Code (BGB) and proceeds from these claims.

Legal consequences of joint and several debt

Relationship between creditors and joint and several debtors

In the relationship between the obligee and his debtors, the acceptance of a joint debt means that the obligee can demand full performance from each debtor (so-called paschal position ). It is at his discretion which debtor can satisfy the obligee. He can therefore request the joint and several debtors to perform and, if necessary, sue who appears to be the most solvent. According to prevailing opinion, there are hardly any restrictions on this right of choice for the creditor. Only with vexatious use of a particular debtor a correction, according to § 242 carried BGB.

Fulfillment and fulfillment surrogates

If the obligee receives the performance (performance) from a joint and several debtor , the claims against the other joint and several debtors also expire. This also applies if the obligee is satisfied with performance surrogates . Ultimately, the legal consequence of reciprocal claims is set-off by offsetting . It should be noted that each creditor can only offset a claim to which he is entitled ( § 422 BGB).

Unlike performance, legal transactions between the obligee and a joint and several debtor do not automatically lead to an effect in favor of or to the disadvantage of the other joint and several debtors. Rather, in the event of a remission of the debt or a litigation between the obligee and a joint and several debtor, it must be determined by interpretation whether the legal transaction should have overall effect. Only if the overall effect was intended does the creditor lose his entire claim against the other joint and several debtors. An overall effect can only be assumed in the case of the remission in accordance with § 423 BGB if the circumstances of the order suggest that the obligee wanted to remit the debt of all joint and several debtors.

If no overall effect can be assumed, it must be determined through interpretation whether at least a limited overall effect is desired. This would mean that the amount that the obligee may demand from the remaining joint and several debtors has to be reduced by the amount that would be due internally to the joint and several debtors who are to benefit from the remission.

Remission and default of acceptance

If the interpretation does not support this result either, a remission has only individual effect, so that the obligee is still able to claim the full amount from the remaining joint and several debtors. A remission then only means that the obligee waives the right to claim against the beneficiary joint and several debtors.

If two joint and several debtors owe the obligee 100 € and each joint and several debtor is obliged to pay 50 € each and if the obligee forgives the first debtor his debt, he cannot claim anything from the second debtor if the waiver has overall effect. If the overall effect is only limited, he can demand € 50, while if S2 has an individual effect he can demand the full € 100.

The BGH refuses to make a presumption with regard to a (limited) overall effect, so that the beneficiary joint debtor has to prove the will to the (limited) overall effect .

Section 424 of the German Civil Code(BGB) defines an overall effect with regard to default of acceptance (default of the obligee). The default of acceptance works for or against all joint and several debtors.

Facts with a single effect

According to Section 425 of the German Civil Code (BGB), other facts that have an impact on the contractual relationship have an individual effect, unless the circumstances of the contractual relationship indicate otherwise. This includes in particular the debtor's default , i.e. facts that are linked to a due and enforceable claim , the impossibility due to which the service cannot be provided permanently or finally for factual or legal reasons, own fault or termination .

For example, fault with regard to an obligation arising from a joint and several debt relationship only applies to the debtor who is accused of guilt. If a claim for damages arises due to the fault of a joint and several debtor, only this joint and several debtor has to pay compensation. However, if the underlying contract shows that the joint and several debtors wanted to take responsibility for the fault of the others, the fault of a joint and several debtor can be added. The BGH affirmed a claim for damages against jointly and severally liable members of a law firm, although only one lawyer could be proven to be at fault.

The statute of limitations for joint and several claims is also only effective. So z. For example, the limitation of the claim against a sued jointly and by lis inhibited be barred during the claims to further jointly and during the process. This shows that claims against joint and several debtors are fundamentally independent and, in contrast to accessory claims, can develop differently.

Relationship between debtors (compensation claims)

If a joint and several debtor pays the obligee, a compensation claim against the other joint and several debtors arises in accordance with Section 426 (1) BGB (so-called joint and several debtor compensation). The amount of the claim is limited to the share that each joint debtor has to bear in the internal relationship. According to Section 426, Paragraph 1, Clause 1 of the German Civil Code , the law assumes a per capita share. So if four joint and several debtors are liable for an amount of € 100, the joint and several debtors can demand € 25 from each of the other joint and several debtors. Often, however, the debt relationship results in a different distribution. Section 254 BGB is of particular importance . If several injuring parties owe compensation, the sum of the share in the internal relationship depends on the degree of fault. It is also possible for a joint and several debtor to be released from any liability in the internal relationship. Even before payment, each joint and several debtor has a right to partial exemption from the other joint and several debtors.

In addition to the claim under Section 426 (1) BGB, the paying joint and several debtors receive the original creditor's claim against the other joint and several debtors by means of a legal session in accordance with Section 426 (2) BGB , insofar as he is entitled to recourse against the other joint and several debtors . The amount of this claim is also limited to the respective share in the internal relationship. The advantage of this claim lies in the transfer of all ancillary securities of the obligee. If the creditor's claim was secured by mortgages or guarantees , the collateral providers are now also liable for the compensation claims of the joint and several debtors. A disadvantage for the paying joint and several debtors can be that §§ 401 et seq. BGB apply and the other joint and several debtors can appeal to defenses against the original creditor so that they can, for example, continue to offset a claim against the creditor ( § 406 BGB ). There are also differences between the two claims with regard to the limitation period.

If a joint and several debtor has been released from his debt with individual effect, this does not prevent the other joint and several debtors from receiving compensation from the beneficiary joint and several debtors in the amount of his internal share. It is not possible for the obligee to release a joint and several debtor from internal liability, as this would constitute a contract to the detriment of third parties . So if a remission or settlement only has an individual effect, the beneficiary debtor still has to participate in the internal settlement and thus does not benefit from the agreed remission.

Special case: disturbed collective guilt

Problem

The concept of disturbed joint and several debt is understood to mean a situation in which joint and several debt does not arise because a potential joint debtor benefits from a liability privilege. Liability privileges can arise on the basis of a contract or legal regulations. The law, for example, differently orders liability to be limited to the standard of personal care . The case law chooses different solutions depending on the type of liability privilege, while the legal literature tends towards a uniform solution.

possible solutions

The solution to the problem of disturbed collective debt is not specifically regulated by law. Three different approaches are conceivable:

  1. The statutory regulation remains. The remaining debtor is fully liable to the obligee. The obligee cannot claim against the injured party who is privileged to be liable. This solution was used by the BGH in the statutory liability privilege of Section 1664 (1) BGB in favor of the privileged parents there. In the case of contractual liability privileges, however, such a solution is faced with the objection that the remaining injuring party would be deprived of the possibility of recourse. This would mean that the liability privilege between the injuring party and the injured party would be a contract at the expense of third parties.
  2. Another solution is that in such a situation a collective guilt is fabricated. The non-privileged damaging party can then take recourse to the privileged damaging party. This recourse, however, makes the exclusion of liability meaningless, since the privileged perpetrator ultimately has to bear his share of the damage. In addition, the privileged perpetrator would be better off if he caused the damage alone than if he only contributed to the damage, because if he had caused the damage alone, he would benefit from the exclusion of liability.
  3. This result can only be prevented if the privileged injuring party is in turn enabled to recourse against the injured party (so-called recourse gyroscope). Finally, the claim for damages of the injured party against the injuring party can be reduced by the privileged injuring party 's share of the damage caused. Thus, the disclaimer works to the detriment of the injured party. For this solution, it is stated that the exclusion of liability would only work to the detriment of the injured party, even in the event of damage, and that this solution is therefore in line with the interests of the injured party. However, the problem is that such a solution cannot be found in the law.

Division of the joint debt for taxes

The provisions on legally stipulated joint and several debt partnerships and their possible division are set out in the tax code (AO §44, §§268ff). Although only the income tax distribution of spouses is named there, this should also be applied accordingly for the state legal provisions on joint and several debtorships of the RBStV §2.

International

In the Austrian ABGB and Swiss law (OR) , the joint debt is also referred to as a solidarity debt . It is regulated in Austria in §§ 891 ff. ABGB as a correality and in Switzerland in Art. 143 ff. OR similar to that in Germany.

literature

  • Thomas Zerres: Die Gesamtschuld , in: Jura 2008, p. 726 ff.
  • Dirk Looschelders : Law of Obligations General Part , 13th edition 2015, Rn. 1194 ff.
  • Medicus , Petersen : Civil law. A presentation for exam preparation, arranged according to the requirements. Vahlen, 23rd edition, Munich 2011, ISBN 978-3-8006-3908-3 , Rn 933-934.
  • Frauke Wernecke: The collective guilt - its liberation from irrational characteristics and its return to the legal system , 1990 (on the "disturbed collective guilt")
  • Anna-Maria Mollenhauer: The disturbed joint debt relationship , in: Neue Justiz 2011, 1 ff.

Individual evidence

  1. Sonja Meier : In historical-critical commentary on the BGB ed. by Mathias Schmoeckel ; Joachim Rückert ; Reinhard Zimmermann , 2003, ISBN 3-16-147909-2 , note on §§ 420 ff.
  2. Klaus Hopt (editor): In Baumbach , Klaus Hopt : Handelsgesetzbuch mit GmBH & Co., commercial clauses, banking and stock exchange law, transport law (without maritime law) , 37th edition. 2016 ISBN 978-3-406-67985-8 .
  3. 15. State Treaty on Broadcasting Fees ( Memento of the original of February 28, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF, 103 kB)  @1@ 2Template: Webachiv / IABot / service.rundfunkbeitrag.de
  4. BGHZ 59, 97 ff .; Wolf: Joint debt and other debtor majorities , JA 1985, p. 370; Peter Bydlinski in: Munich Commentary on the Civil Code , 6th edition 2012, § 421, Rn. 10, 12.
  5. BGH , NJW 1965, 1175.
  6. BGH, NJW 2007, 1208 Rn. 17; Zerres, Jura 2010, 728.
  7. Julius von Staudinger (Ed.): Commentary on the Civil Code with introductory law and subsidiary laws . 13. Editing and revisions, 1993 ff. ISBN 3-8059-0784-2 , 2012, preliminary note § 765, marginal no. 16.
  8. Dirk Looschelders : Law of Obligations General Part , 13th Edition 2015, Rn. 1195.
  9. Peter Bydlinski: Munich Commentary on the Civil Code , 6th edition 2012, § 421 Rn. 56, 64, 67.
  10. BGH, NJW 2012, 1070, Rn 18.
  11. Frauke Wernecke: Die Gesamtschuld: their liberation from irrational features and their return to the legal system , Berlin, Duncker and Humblot 1990, p. 36 ff.
  12. Zerres, Jura 2010, 729.
  13. Palandt : Brief Commentary on the Civil Code , 72nd Edition 2013, § 421, Rn 8.
  14. BGH, NJW 2010, 861ff, Rn 31; Zerres, Jura 2008, 30.
  15. Palandt: Brief Commentary on the Civil Code , 72nd Edition 2013, § 423, Rn 4.
  16. Palandt: Brief Commentary on the German Civil Code , 72nd edition 2013, § 423, Rn 3.
  17. BGH NJW 2012, 1070, Rn. 20 ff.
  18. BGH, NJW 1971, 1803.
  19. Zerres, Jura 2008, 732.
  20. on this: Weise, NJW Spezial 2011, 108.
  21. Dirk Looschelders: Law of Obligations General Part , 13th Edition 2015, Rn. 1201.
  22. BGHZ 103, 338; BGHZ 58, 216 Rn. 20; BGHZ 54, 177 Rn. 14th
  23. ^ Medicus , Petersen : Civil law. A presentation for exam preparation, arranged according to the requirements. Vahlen, 23rd edition, Munich 2011, ISBN 978-3-8006-3908-3 , Rn 934.
  24. Anna-Maria Mollenhauer: In NJ 2011, 3.
  25. Dirk Looschelders: Law of Obligations General Part , 13th Edition 2015, Rn. 1211.
  26. ^ Medicus, Petersen: Civil law. A presentation for exam preparation, arranged according to the requirements. Vahlen, 23rd edition, Munich 2011, ISBN 978-3-8006-3908-3 , Rn 933.
  27. 15. State Treaty on Broadcasting Fees ( Memento of the original of February 28, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF, 103 kB)  @1@ 2Template: Webachiv / IABot / service.rundfunkbeitrag.de