Deposit (right)
The deposit refers to the transfer of money , securities , valuables or documents to a depository, provided there is a legal reason for deposit.
history
Due to Artt. 144–146 EGBGB was the right of deposit in the Empire and the Weimar Republic state law . As a result, 17 different deposit regulations still existed in the German Reich in 1937 . After the transfer of judicial sovereignty to the Reich, a standardization was therefore considered, since the deposit law was regulated very differently in some cases. For example, the Prussian deposit regulations stipulated that the deposit proceedings were generally settled with the local courts, but in various exceptional cases with the regional and higher regional courts. In Bavaria, the Bayerische Staatsbank was responsible for deposits, unless the subject of the deposit was documents which in turn had to be deposited with the local courts.
The Reich-wide deposit regulations were issued on March 10, 1937 by the then Reich government and came into force on April 1, 1937. This subsequently continued in the Federal Republic of Germany.
Due to Article 17 of the Second Act on the Adjustment of Federal Law in the area of responsibility of the Federal Ministry of Justice of November 23, 2007, the deposit regulations ceased to apply with effect from December 1, 2010. It was followed by the deposit laws issued by the respective federal states, which mostly came into force immediately afterwards. Exceptions to this are the Berlin Deposit Act (in force since April 21, 2011) and the Lower Saxony Deposit Law (in force since January 1, 2013).
Statutory Regulations
The deposit laws of the federal states regulate the formal right of deposit . So you determine the responsibilities in filing matters, the procedure and the legal relationships between the parties involved.
The substantive right of deposit , on the other hand, is regulated outside of the deposit laws in a wide variety of laws and specifies in which cases a deposit is possible at all. In most cases , these are BGB , ZPO and StPO .
Responsibilities
The local courts are designated as depository offices. As a rule, there is no local jurisdiction. Basically, the deposit should take place at the depository of the place of performance . However, it is also effective when done in another location. However, individual state governments have reserved the right to centralize the depository offices at individual local courts. The proceedings are processed by a Rechtspfleger who, however, does not work objectively independently on filing matters.
Procedure
Request
The person who applies for a deposit must submit a corresponding application in writing to a depository agency . In this are to be described in detail:
- Depositor,
- objects to be deposited,
- Reason for deposit,
- Authorized recipients,
- if necessary, whether the deposit is made dependent on a consideration and whether the right of redemption is waived.
Reasons for deposit
A deposit can only be made if there is a legal reason for it. Often this happens because the obligee is in default of acceptance or the debtor has no certainty about whom he has to pay a debt to ( § 372 BGB). According to Section 374 of the German Civil Code, the debtor must then inform all possible recipients of the deposit. In order to discharge the debt , he must also waive the right to take back the deposited item ( Section 378 BGB). Furthermore, the Code of Civil Procedure (ZPO) determines several cases in which a security must be provided, which can be done by depositing money or securities according to Section 232 (1) BGB. Here, a provisional enforceability be brought or averted. Foreign parties who are not based in the EU must, if requested by the opposing party, provide process cost security in order to secure a possible claim for reimbursement in accordance with Section 110 ZPO . The background to this regulation is the greater difficulty in enforcing claims abroad. In addition, bail must be deposited for the execution of an arrest warrant in accordance with § § 116 , § 116a StPO. Likewise, the purchaser of a property acquired by way of a foreclosure auction has the option of exempting himself from his interest liability by depositing the bid ( § 49 ZVG).
Less common deposit cases can be found, for example, in the Building Code , the Land Register Clearing Act , the Insolvency Code or the Electrical Act .
No deposit within the meaning of the deposit laws
In individual cases it happens that the law refers to a “deposit”, but does not mean a deposit within the meaning of the deposit laws. This includes the compensation of witnesses in the case of a direct summons by the accused according to § 220 StPO. This is in the office to deposit the relevant Criminal Division. The same applies to dispositions due to death, which can be handed over to official custody according to § 2248 BGB. Even if Section 346 of the FamFG speaks of "depository receipts", these dispositions must be kept with the probate courts.
Objects that can be deposited
money
It is possible to deposit all types of money. It does not matter whether the currency is domestic or foreign. A deposit can be made either in cash or by bank transfer. A deposit can also be made by check . However, the check itself is not deposited. Instead, it is cashed by the depository and the money is deposited like a cash payment.
Interest
Interest on the deposited funds was abolished in all federal states when the respective deposit laws came into force or in the following years. Most recently, Lower Saxony lifted the interest that still existed there in May 2020. The interest from old cases remains unaffected.
Securities
This can be used to deposit effective pieces and securities in collective custody . These are then transferred to a deposit at the depository. All rights as a security holder are transferred to the depository for the duration of the deposit.
Certificates
This includes all documents, regardless of whether they represent their own value or not. For example, civil status documents, savings books, powers of attorney , vehicle documents or mortgage notes come into consideration .
Valuables
Valuables within the meaning of the deposit law are smaller items that have a high value, such as jewelry or precious stones. These treasures must have their own value. For this reason it is not possible to leave a key for a locker, for example. Apart from the non-existent value of the key, the locker would also not come under the influence of the local court, so that third parties could possibly gain unauthorized access to it. The storage of a car or a yacht fails because of the practical storage options.
Release
If the deposit was made in favor of a single person, the deposited item can be released to this person if they submit a written request. In the case of a deposit in favor of several possible authorized recipients, there are different options for proving the authorization of one or more persons to receive:
- All potential recipients agree in writing to whom the deposited item should be returned.
- The eligibility is determined by a final decision .
- Any competent authority may request the depository to hand it over.
Decay
If within a period of 30 or 31 years - depending on the reason for the deposit - no justified request for the surrender of the deposited item is made, the claim to surrender expires. At the same time as the claim expires, the deposit will expire in the respective federal state in which the deposit was made.
Switzerland
In Switzerland, a deposit is possible in accordance with Art. 92 OR if the obligee is in default of acceptance. Goods can also be deposited without permission from the judge. The costs are borne by the obligee, just as he bears the risk. As with any depository agreement, the debtor can withdraw the deposited item at any time, which revives the original obligation. If the goods are perishable, they can be auctioned publicly with judicial approval, whereby the debtor can then release himself from his performance obligation by depositing the proceeds.
literature
- Bülow / Schmidt: deposit regulations. Beck's short comments , 4th edition, Munich 2005, Verlag CH Beck, ISBN 3 406 52063 4
References and comments
- ↑ The information and links to the state laws have been integrated into the WP article deposit regulations .
