Lien

from Wikipedia, the free encyclopedia

A lien is a limited real right of the pledgee to a thing or a right that is usually created to secure a claim . If the creditor from his claim, he may pawn utilize in order from the proceeds to satisfy.

General

The lien is a credit security provided by the BGB , whose provisions of property law must be observed. Participants in the lien are the borrower ( debtor ), the lender ( creditor ) and a security provider , unless the borrower provides the pledge himself.

history

The right of lien in the form of pledge ( Latin pignus ) has been known since the 5th century BC. By Twelve Tables law . Already in Roman law it was accessory as a limited real right and thus depended on the existence of the claim to be secured. Since the obligee usually agreed on a sunset clause when the claim was due, he was able to assert a right of exploitation on the item from that point on. The same applied to the transfer of ownership by way of security ( Latin: fiducia cum creditore ), which also served as collateral security, even though the security taker became the full owner of the pledged item, as in today's modern law. The exploitation was enforced in both cases by means of actio Serviana . The transfer of ownership under civil law, which was ubiquitous up to the classical imperial era , was lost in late antiquity and, like the manipulation in the digests, had already been erased. The non-possessory lien ( Latin hypotheca ) later came to Rome from the Roman eastern provinces under Emperor Julian . In these cases, the right of lien was agreed without handing over the item.

In addition to the forfeiture clause, a Roman creation, the sales deposit ( Latin pactum de vendendo ) , already appeared during the period of the republic . For the debtor, it was cheaper than realizing it, as the surplus resulting from the sale ( Latin superfluum ) could be paid out to the pledger. According to the Codex Iustinianus (like the digests, part of the later so-called Corpus iuris civilis ), Emperor Constantine forbade the forfeiture deposit to protect the pawnbroker in 320 AD. It was also the iustinianischen Rechtgebung.

Friedrich Kluge assumed the German word origin of the pledge from equilibrium ( Latin pondus ), because the Old High German “pfant” described a counterweight (to debt). The Prussian "Mortgage and Concurs Order of February 4, 1722" already adopted the Roman bargaining principle. The term lien first appeared in Johann Leonhard Frisch's dictionary in 1741 . The Codex Maximilianeus Bavaricus Civilis of January 1756 speaks of the "pledge" as well as the General Prussian Land Law (PrALR) of June 1794, which declared the pledge as "the right in rem that someone has been granted to a foreign thing to secure his claim , and by virtue of which he can demand his satisfaction himself from the substance of the matter ”(I 20, § 1 APL).

The German Civil Code (BGB), which came into force in January 1900 , largely adopted the provisions of Roman law and made a classification for liens.

Classification

One differentiates:

  1. according to the type of order
    1. Contractual lien (also called mortgage lien)
    2. lien created by law
    3. Lien
  2. according to the nature of its publicity in legal transactions
    1. Lien (announcement by possession )
    2. Register lien (pronouncement in a register with public belief )
  3. according to the type of the pledged item
    1. Real estate lien
    2. Lien (right to movable property )
    3. Lien on rights
  4. according to the connection with the right to be secured
    1. accessory liens
    2. non-accessory liens

In the case of accessory liens, the creation, transfer and continuation of the lien depend on the claim. However, non-accessory liens are usually also created to secure a claim. However, they lack a comparable property law link with the claim; their fate is only linked to the claim through a contract under the law of obligations ( security agreement ).

German law

In German law, only the lien on movable property (Fahrnis) and rights as lien in the narrower sense are mentioned. The mortgages are as mortgage , mortgage and annuity referred and liens in the broader sense.

According to German property law, the lien is the obligee's right in rem to utilize a movable thing , a claim or a right of the debtor in order to satisfy a claim. The lien is strictly ancillary , i.e. dependent on the existence of the secured claim. There are three different types of lien depending on how they arise:

Legal lien

The contractually established lien on movable property plays only a minor role economically. One reason for this is that in Germany the legal lien is (almost) always a lien. The pledger must therefore hand over possession of the pledged item to the obligee. This deprives the pledger of the opportunity to continue to use the pledged item economically (e.g. to repay the claim secured with it). Therefore, the lien in practice has been largely through the transfer of ownership displaced. The right of possession by pawnbrokers and Lombard loans retains a certain importance .

Order

The order of a legal lien takes place according to § 1205 Abs. 1 BGB by agreement and delivery of the thing. This expresses the fact that German law does not recognize a non-possessory lien as a right in rem. The weakness of the lien is that the pledger can no longer use the item, e.g. B. Machines at a company. However, surrender must not be misunderstood as the granting of immediate possession. It is sufficient that the obligee receives indirect ownership (example: V owns a car. This is used exclusively by his son who lives abroad . V pledges the car to bank B for a loan. It is sufficient to create the pledge it ends when V indicates to his son that he should now own property for the bank, i.e. the son informs the bank of the property. V does not retain any property).

This is to be distinguished from the second possibility of ordering a lien, which is regulated in Section 1205 (2) BGB. The right to surrender is assigned here. In terms of content, the regulation corresponds to Section 931 of the German Civil Code (BGB), but because of the principle of publicity under property law, it also requires notification of the pledge to the owner. (Example: V lends his son his car for a week. During this week he agrees on a loan with bank B, to secure a lien on the car. V agrees with B that the bank will hold the car directly from S. V then writes a letter in which he informs S of the pledge and orders the return to B after the loan period has expired).

According to § 1206 BGB, a qualified co-ownership of the lien debtor is also possible. This is e.g. This is the case, for example, when the debtor and the creditor each have a key for a safe deposit box and the debtor is not able to open the compartment without the creditor.

Lien on claims

In the case of claims as a pledge, notification to the third party debtor and , if necessary, the handover of documents , such as savings book or insurance policy, take the place of handover . For this reason, the scope is limited in practice to small loans granted by pawnbrokers , as well as to the pledging of securities and life insurance policies . It is also possible to order a usage deposit which, in addition to securing, allows the use to be made to reduce the secured claim .

Recovery

In accordance with German law, the pledge is used as a rule by private sale by the obligee. Before the deposit can be used, the following requirements must be met:

  • The claim must be due (lien) ( § 1228 BGB),
  • The sale must be threatened ( Section 1234 Paragraph 1 BGB),
  • The sale is possible at the earliest 1 month after the threat (§ 1234 Paragraph 2 BGB):
    • only against cash payment ( § 1238 BGB)
    • either by public auction ( § 1235 Paragraph 1 BGB), whereby the place and time of the auction must be publicly announced ( § 1237 BGB)
    • or by selling through a broker if the pledge has a stock exchange or market value (Section 1235 (2) BGB).

It is also possible to agree on the forfeiture of property to the pledgee. This is the rule in other legal systems.

In the case of pledged claims, the third-party debtor may only make payments to the pledgee after the pledge has been reached ( Section 1282 BGB).

Going out

The lien expires

  • Expiry of the claim for which it exists,
  • Repeal by the creditor,
  • voluntary return of the thing or
  • lawful sale.

In addition, the deposit goes to the general property law principles, as in the case of § 936 BGB, if a third party acquires in good faith unencumbered title to the mortgaged property or in adverse possession as well as connection, mixing and processing. If the pledger becomes insolvent, the pledgee has a right to separate payment.

Statutory Lien

Statutory liens do not come about through a contract, but directly by virtue of a statutory order and are linked either to the obligee's possession of the pledged item or to the transfer of the pledged item into the obligee's sphere of control. An agreement on the creation of statutory liens is therefore not required. The entrepreneurs finally listed in the law provide preliminary work , which creates a claim against the client . The security requirement of the advance contractor is taken into account by the lien on the items brought in or on the item to be processed or the items transported.

If the statutory lien has arisen, the provisions of the contractual lien apply ( § 1257 BGB). Liens of possession exist when certain entrepreneurs already exercise ownership of movable objects and have a claim against their owner; It is regularly next to the plant contractor lien to the commercial liens of commission agents , freight forwarders , carriers and storekeeper , which in HGB are included. Liens without possession are the so-called contribution liens; Here it depends on the transfer of the pledged item into the domain of the landlord , lessor and restaurant owner .

Requirements and bases for all statutory liens are:

  • the statutory liens do not have to be specifically mentioned in the contracts concerned, but also apply without an agreement;
  • the existence of a claim by the obligee, which must result from the special contract protected by the statutory lien (e.g. rental contract) (strict accessory);
  • The debtor's ownership of the pledged item: the debtor must be the owner of the pledged item;
  • a bona fide acquisition of statutory liens is excluded according to § § 1207 , § 1257 BGB for non-possessory liens, unless the realization takes place by auction by the general, publicly appointed, sworn auctioneer (see § 935 (2) BGB) during the Contribution liens an acquisition in good faith to protect commercial transactions is possible ( Section 366 (3) HGB).
  • A contractual waiver of the assertion of statutory liens is possible.

These legal liens only affect a narrowly limited group of creditors, who are finally listed in the relevant laws:

A distinction can be made between a connected and an inconnex lien . One speaks of a connected lien if the claim and the goods are related, e.g. B. Storage goods and storage fees. An inconnexe lien is spoken of when the goods and claims are not related, e.g. B. with a freight forwarder: Debt from a previously unpaid transport order. This lien may only be exercised if the claim is undisputed.

Lien

The German code of civil procedure refers to the rules on the legal lien for the lien arising in the foreclosure. The state act of attachment replaces, as it were, the consent of the owner of the thing. In this case, the sale takes place by public auction by the bailiff or by the publicly appointed, sworn auctioneer.

Effective entanglement is required for the creation of a lien . It is controversial whether further requirements are necessary.

  • The public law theory , which is particularly represented in teaching, rejects the need for further requirements, since according to this the lien is purely public in nature. From this classification follows a purely procedural right to pursue the exploitation and to receive the proceeds, but not also to be allowed to keep them. The basis of a realization is therefore the garnishment lien, which, however, arises solely from the entanglement.
  • The mixed private law-public law theory (probably the prevailing opinion today) differentiates between seizure lien on the one hand and entanglement on the other. Only the latter is the basis for recovery. The seizure lien itself decides on the material entitlement to be able to keep the proceeds and is of private law nature. In addition to the effective entanglement of the essential enforcement requirements and procedural regulations, it is necessary for it to arise. Furthermore, there can be no lien on things that are not the debtor and the obligee must be in possession of a legally binding title. As a result, when realizing non-debtor property (e.g. by auctioning), the buyer can acquire ownership by virtue of an act of sovereignty despite the lack of a pledge, but in the absence of a pledge, the obligee receives the proceeds from the auction without legal grounds (and therefore conditional).

In this constellation, the public law theory comes to the same result in a different way. Here the basis for the realization is solely the seizure lien, which, however, arises from the entanglement regardless of ownership. Since this view does not draw any conclusions from this for the material justification, according to it the creditor received the proceeds without legal grounds and accordingly surrendered them.

In principle, the theories only provide different results if the point in time at which the seizure lien arises plays a role, for example if the rank of a right is decisive, or in the scope of Sections 50, 88 InsO.

Austrian law

In contrast to “ full right ” property , the lien is a limited right in rem. It secures a (contractual) claim, e.g. B. from loans , through one thing. The pledgee, i.e. the creditor of the claim in whose favor the right of pledge was established, has the right to obtain satisfaction from the realization of the thing at the due date if the secured claim is not fulfilled. In the insolvency proceedings he has gem. § 48 IO ( Insolvency Code ) a right of separation: the pledged item is separated from the insolvency estate, thus withdrawn from the proportional realization, and sold separately (in favor of the pledgee), so that this can be satisfied preferentially.

The right of lien can arise as a legal transaction through pledging, judicially through attachment or directly from the law .

Due to its real (property law) quality, the right of lien differs fundamentally from surety and the assumption of debt . In both of these cases, the liability fund is simply expanded by adding further (possible) debtors; but with this personal security it can happen that even the surety or the accession debtor becomes insolvent. In the case of a lien, no person is liable, but the pledged item (and this in full in insolvency proceedings).

All things within the meaning of § 285 ABGB can be pledged, i.e. not only physical things but also rights. Note: If money is pledged, the pledgee may not use it, he must keep it separate from his money (to prevent the acquisition of property through mixing) and must return exactly the same notes and coins. That is why there is an irregular deposit (pignus irregulare) on money. The pledgee becomes the owner and is allowed to use the money and only has to put back the same amount. (The legal nature is still disputed.) In case of doubt, components and accessories are considered to be pledged.

Basic principles

  • Accessory nature: The lien only exists to the extent that there is a claim to be secured. If the claim has been fulfilled, the lien expires automatically; no special mode is required; gives z. For example, if the pledgee (see below) does not return the thing after the claim has expired, the owner, i.e. the former pledgee, can sue for the surrender of his thing with the property claim (§ 366 ABGB ) without the pledgee giving him the right of possession - the pledgee can counter this in the case of an upright lien. (Exception to the principle of accessory: owner mortgage with no claims).
  • Right to someone else's thing: The lien exists in principle on someone else's thing (exception: owner's mortgage with a claim).
  • Publicity: The right of lien must be made public (for the purpose of protecting creditors) (movable property: pledge principle, immovable property: entry in the land register).
  • Specialty: The lien always relates to certain things. A person's property cannot be pledged as such.
  • Priority: The order in which several pledgees are satisfied is determined by their rank.
  • Undivided pledge liability : The pledge is liable for the entire claim. Accordingly, it is liable until the entire claim has expired. This is intended, among other things, to give the debtor the incentive to meet the claim in full.

Acquisition of the lien

  • Title and mode: Like any right in rem, a right in rem is also required to establish a lien
    • Title (e.g. pledge contract) and one
    • Mode. With the latter - as with the acquisition of property - a distinction is made between movable and immovable property:
      • Movable items: The pledge principle applies to the handover; the pledgee must hold the item in order to maintain the lien (pledge must not be in the custody of the pledgee).
      • Immovable property: The right of lien is entered in the land register, which creates a mortgage, i.e. a lien on immovable property.
In addition to the derivative acquisition just described , the original acquisition of the lien according to Section 456 ABGB is also possible.

Pledge

In contrast to the acquisition of property, when acquiring a lien, a transfer of ownership through the constitution of property is out of the question for reasons of publicity. In addition to the physical handover, however, handover is just as possible as handover by means of ownership instruction. Handover by means of symbols (e.g. keys for warehouse) is also permitted - as a subsidiary form of transfer of ownership, if physical handover is impossible or impractical (Section 452 of the Austrian Civil Code ).

mortgage

A mortgage, also known as a real estate lien, is a lien on an immovable object, i.e. a property. It is justified by an entry in the land register , specifically in the C sheet (load sheet) of the land register deposit. Before registration, the land registry court needs proof of the existence of the claim to be secured. Since the pledgee does not become the real owner of the thing, which in practice would also run counter to the purpose of the mortgage, this is a non-possessory pledge.

There are special features with the following special types of mortgage:

Maximum amount mortgage

It occurs in particular when a bank grants a credit line, but wants collateral in return. With her it comes to the incorporation of a lien up to a certain amount (maximum amount). Up to this amount, the rank is "used up" - regardless of whether there is actually a claim up to the maximum amount.

The maximum amount mortgage weakens the specialty principle in the lien insofar as the lien is not granted to secure a certain claim, but the lien z. B. can also be granted in relation to future claims - the prerequisite is, however, that these are at least sufficiently determinable (e.g. all claims for a specific legal reason).

A sub-type of the maximum amount mortgage is the so-called "deposit mortgage", whereby a mortgage is granted for future claims for damages or warranty claims.

Simultaneous mortgage

Several properties are fully liable for one claim. If the debtor defaults, the pledgee has the right to choose which property he wants to satisfy himself with - he can also use several properties in part.

In the internal relationship, however, a recourse claim of the person who has been claimed must be affirmed - or those subsequent creditors who did not get a chance through the realization of "their" property are entitled to a mortgage on one of the "remaining" properties .

Debt-stripped owner mortgage

As explained above, the lien is fundamentally dependent on the existence of the secured claim. However, a mortgage exists until it has been deleted from the land register . If the claim to be secured has now expired, the mortgage continues to exist until the cancellation is incorporated. The former debtor now has the opportunity to use the pledge obtained through this mortgage to reschedule . With this rank he can now secure another or new claim. However, the risk of the owner mortgage with no claims is that in the meantime it is possible to acquire the mortgage in good faith due to the trust principle of the land register. As long as the mortgage is entered in the land register, a third party in good faith can acquire the mortgage trusting the land register status.

In order to avoid this risk, the owner of the property has the option of including a priority reservation in the land register on the released pledge, which is valid within three years and gives the owner time to accept the pledge with another claim occupy.

The one-year conditional lien registration pursues similar purposes .

Pledging of rights

Rights, i.e. immaterial things, can also be pledged. In this case, the debtor must be notified of the pledge as a publicity act or a book note must be made.

The pledging of a claim can also be, for example, the pledging of “a savings book”. Here, the value of the physical thing is irrelevant because it is minimal, it is all about the claim against the bank embodied in the savings account.

In the case of legal assignment , i.e. an assignment resulting directly from the law (e.g. in favor of the surety who is responsible for the debtor), there is also an “automatic” transfer of the lien. In contrast, the transfer of the lien in connection with an ordinary, i.e. legal, assignment requires a corresponding act of transfer (e.g. handover).

Alternatives

As an alternative to the lien, there is a transfer by way of security or security assignment . Another form of real security is retention of title .

Swiss law

The lien enables u. a. an pursuit of the realization of pledges (Art. 151 ff. SchKG).

In bankruptcy include the property of the bankrupt standing pawns in the bankruptcy estate (Art. 198 SchKG).

A special lien is the builder lien , which allows builders to secure their wages by means of a lien on the property on which they have performed their work. There is also a special lien for railways and shipping companies for which the Federal Office of Transport keeps a railway pawn book . The legal basis for this is the Federal Act of 25 September 1917 on Pledging and Compulsory Liquidation of Railway and Shipping Companies (VZEG)

literature

Individual evidence

  1. ↑ Digest 13, 7; 20, 6-1; explanatory: Max Kaser : Studies on Roman Lien 1982.
  2. ^ Heinrich Honsell : Roman law. 5th, supplemented edition. Springer, Berlin et al. 2001, ISBN 3-540-42455-5 . P. 77.
  3. ↑ Max Kaser / Rolf Knütel , Roman Private Law , 1960, p. 14 ff.
  4. ↑ Uwe Wesel : History of the law in Europe: From the Greeks to the Treaty of Lisbon. Beck Juristischer Verlag, Munich 2010, ISBN 978-3-406-60388-4 . P. 203 f.
  5. ↑ C. 8, 34, 3.
  6. ^ Friedrich Kluge, Etymological Dictionary of the German Language , 1989, p. 539
  7. ^ Johann Leonhard Frisch, German-Latin dictionary , Vol. 2, 1741, p. 48
  8. ↑ General Land Law for the Prussian States, Volume 1, 1794, p. 850
  9. ^ BGH judgment of December 21, 1960 ( VIII ZR 146/59), in: BGHZ Volume 34, p. 153 ( PDF file ; 26 kB)
  10. ↑ According to the private law theory , which is no longer represented today, the general requirements of a legal lien were necessary for the creation of a lien.
  11. ↑ cf. on this Hunziker / Pellascio, p. 163 ff.
  12. ↑ Hunziker / Pellascio, p. 264.
  13. ↑ VZEG in the Systematic Collection of Swiss Federal Law