Bearer paper
Bearer securities are securities for which the respective holder of the security can exercise the evidenced right. In contrast to order papers and recta papers , bearer papers do not contain the name of a beneficiary.
Bearer securities are the most marketable securities, the securitized rights of which can be transferred by agreement and handover in accordance with § 929 BGB and which are therefore legally equated with movable property . The respective holder is entitled to exercise the documented right against delivery of the bearer paper.
species
Genuine bearer securities ( Securities to Bearer ) include bearer checks with a bearer clause ( Art. 5 Paragraphs 2 and 3 ScheckG ; as a rule of the check), bearer shares ( Section 10, Section 1 of the Stock Corporation Act ; as a rule, of the share) and bearer bonds ( Section 793 ff. BGB). Investment certificates may be issued as bearer paper or order paper ( Section 33 Paragraph 1 Sentence 2 InvG and Section 18 KAGG old version). As a legal tender, money is equated with bearer papers. Bearer checks evidencing a claim of the holder against the related financial institution for payment of the registered amount of money bearer a share of the capital of the issuing corporation and bearer bonds issuing a claim against the debtor. Investment certificates are unit certificates which certify the legal status of the unit holder vis-à-vis a capital investment company.
Legal bases
A bearer paper is transferred by transferring ownership of the paper in accordance with the property law provisions of § 929 ff. BGB, i.e. by agreeing on the transfer of ownership and handing over the paper to the purchaser. When the bearer paper is handed over to the purchaser, the right evidenced in the bearer paper is automatically transferred to the purchaser: the right from the paper follows the right from the paper . In doing so, the legislature wanted to increase the marketability of bearer securities through transferability with as little obstacle as possible by viewing bearer securities and the rights evidenced therein as an inseparable unit.
In order to further increase the marketability and legal security for bearer papers, the legislature has even extended the protection of good faith otherwise applicable to movable property . While a bona fide acquisition of stolen, lost or otherwise lost movable property is generally not possible ( Section 935 (1) BGB), this provision does not apply as an exception to money or bearer papers ( Section 935 (2) BGB). Money and bearer securities can therefore be acquired in good faith, even if they have been stolen, lost or otherwise lost from the rightful owner. As a result, the exhibitor is also released by providing a service to a non-authorized owner (i.e. also to the thief or finder).
However, according to Section 367 (1) of the German Commercial Code ( HGB), there is a strict exception for credit institutions familiar with handling securities . According to this, credit institutions have to search the electronic Federal Gazette for stolen or lost bearer papers and are only in good faith when purchasing such papers after one year from the publication of the loss, provided they meet the special requirements of Section 367 (2) HGB.
After the warrant theory requires the emergence of a liability from a bearer or order paper regularly a Begebungsvertrags .
Small bearer papers
A "small" bearer paper within the meaning of § 807 BGB exists if the issuer can free himself by providing a service to the - not named - owner, the owner is entitled to demand the service and possession of the document is necessary to assert the right . Here the BGH ruled that postage stamps are “small bearer papers” in the sense of § 807 BGB and not a money surrogate, as was assumed by the prevailing opinion at the time of the earlier “Bundespost”. The Federal Court of Justice (BGH) considered it objectively necessary, in the interests of legal certainty and marketability, to undertake a generally binding interpretation of the debtor's performance obligation (Deutsche Post AG) by considering the return period for postage stamps denominated in Deutsche Mark of 2½ years to be appropriate. Small bearer papers are therefore bearer papers that only incompletely reflect the legal relationship and the issuer. Pursuant to Section 807 of the German Civil Code (BGB), the rules on bearer bonds are partially applicable to them (Section 793 (1) BGB, Section 794 , Section 796 , Section 797 BGB).
The small bearer papers include: postage stamps , gift vouchers , telephone cards , travel tickets or entrance tickets .
Limping bearer papers
The often used term "limping bearer papers" is misleading because it is recta papers with a legitimation clause. In "limping" bearer papers - so-called qualified legitimation papers - the issuer promises a performance to a creditor named in the certificate, but at the same time stipulates that the performance can be effected to every holder of the certificate ( § 808 BGB). The limping bearer papers are not transferred, as is the case with bearer papers, through the transfer of ownership of the document, but only through the assignment of the claims documented therein. However, the exhibitor is entitled to make payments to each holder of the certificate with the effect of discharging the debt; he is not obliged to do this, but can rather demand that the owner identify himself as an authorized creditor beforehand. The debtor can always request delivery of the paper upon performance. In contrast to the "normal" bearer papers, limping papers always contain the name of the obligee, which means that the assignment of the claim is necessary for the purposes of the transfer. These differences bring the limping bearer papers into the material-legal proximity of the recta papers.
Savings accounts
The savings book cannot be transferred independently. It is necessary to assign the savings credit noted in the savings book by means of an assignment contract (§ § 398 ff. BGB). Since the ownership of the savings book belongs to the (new) creditor ( § 952 BGB), the latter has a right to surrender the savings book against the old creditor (§ § 402 , § 985 BGB). Within the scope of the “promised service”, a bank may make payments to any owner of the savings book with a discharging effect, but without being obliged to perform to them. The “promised performance” of the credit institution to an unauthorized book holder includes the respective savings contract and the notice periods resulting from the law ( § 488 BGB = loan) or contract (savings conditions). If these standards are not observed, the credit institution is not released from its obligation to perform towards the authorized creditor ( Section 362 BGB). This also applies if a blocking notice is not observed, which represents a contractual restriction of the legitimacy effect of § 808 Paragraph 1 Clause 1 BGB. Payments as part of the promised service may not be made to the unauthorized holder if the bank has positive knowledge of the book holder's lack of authorization or if it otherwise disburses the unauthorized holder contrary to good faith.
Insurance certificate / life insurance policy
With the contractually granted authorization to pay to every holder of the insurance policy with discharging effect, but without being obliged to pay, the insurance policy becomes a qualified legitimation paper within the meaning of § 808 BGB. The provision of Section 4 (1) VVG also prevents the insurance policy from being designed as a pure bearer paper because it declares Section 808 BGB to be applicable. In addition, the insurance company is entitled to regard the certificate holder as being entitled to other dispositions of rights from the insurance contract.
The legitimacy effect of Section 808, Paragraph 1, Clause 1 of the German Civil Code (BGB) extends to the contractually promised services. In the case of life insurance, the contractually promised performance is not just the performance of the sum insured in the insured event. The performance of the surrender value after termination of the contract is also contractually promised ( Section 176 VVG); because the right to the surrender value is just another manifestation of the right to the sum insured. Accordingly, the legitimation effect of an insurance policy as a document in the sense of § 808 BGB also extends to the right of termination in order to obtain the surrender value. The insurance company can therefore regard the owner of the insurance policy as entitled to terminate according to Section 808 of the German Civil Code (BGB) if he or she requests payment of the surrender value.
Simply handing over the policy is neither necessary nor sufficient to transfer the rights from the life insurance, as the policy is simply recta paper. As with the savings book, it is rather necessary to transfer the claims from the policy by way of an assignment contract and the subsequent transfer of the policy to the new creditor. Due to the design as a qualified legitimation paper, the insurance may only pay out on presentation of the policy, despite a legally effective transfer.
The limping bearer papers include: savings books, insurance certificates and deposit receipts.
"Technical" bearer papers
If order papers are provided with a blank endorsement or if recta papers are transferred with a blank assignment, these legal acts give the relevant securities the character of a bearer security. In the case of bonds, registered shares and interim notes made out to order, this is even expressly confirmed by law ( Section 367 (1) sentence 3 HGB). Acquirers of these types of securities with a special transfer note can then legally transfer order or recta paper by agreement and handover as with bearer securities.
A blank endorsement leaves the name of the acquirer (endorser) open, as does the blank assignment, in which the assignee is not mentioned. Registered shares are available for stock exchange purposes if the last transfer ( Section 68 (1) AktG) - and only this - is expressed by a blank endorsement. Registered shares, which can only be transferred with the consent of the company ( Section 68 (2) AktG), can also be delivered if the last transfer - and again only this - was made by blank assignment or if blank transfer requests from the seller are attached to the shares. The legal effectiveness of a blankocession is controversial in the literature.
Assertion of bearer securities
Assertion of bearer securities means that the respective holder of the paper can demand his claim to performance from the debtor in return for the delivery of the document when the right documented therein falls due. Bearer papers are equipped with an unrestricted legitimation function. The possession (possession of the bearer paper) is sufficient to exercise the right with the exhibitor. The possession of the paper establishes the unqualified presumption of material entitlement. The exhibitor may only raise objections to the holder that concern the validity of the exhibition, arise from the certificate or that the exhibitor is entitled to directly against the holder. If the debtor was incapable of doing business at the time of issue or if he can prove that the owner has already received the performance promised in the document, then the debtor is exempt from performance (liberation effect). This liberation effect does not apply, as an exception, if the debtor has positive knowledge that the owner of the document is not the true holder of the right and this can easily be proven.
literature
- Johannes Emil Kuntze : The doctrine of the bearer papers. Or obligations au porteur, presented in terms of legal history, dogmatic and with consideration of German particular rights. Hinrichs, Leipzig 1857, ( digitized version ).
- Heinrich Brunner : The securities. In: Endemann's handbook of German trade, maritime and exchange law. Volume 2: Book II. The objects of trade. Fues, Leipzig 1882, § 191-199.
- Otto Fellner: The legal nature of bearer papers. Knauer, Frankfurt am Main 1888, (Göttingen, University, dissertation, 1888).
- Palandt : Bürgerliches Gesetzbuch (= Beck's short comments. 7). 65th, revised edition. Beck, Munich 2006, ISBN 3-406-52604-7 , § 807 RdNr. 3 (p. 1181: “Another view, 64th edition.”).
Web links
Individual evidence
- ↑ BGH NJW 2006, 54 ("Stamp judgment")
- ^ BGH NJW 1978, 1854
- ↑ BGH NJW 1976, 2212
- ↑ BGHZ 28, 368
- ↑ BGH NVersZ 1999, 365
- ^ BGH NJW 1975, 1507
- ↑ BGHZ 45, 162
- ↑ Conditions for transactions on German stock exchanges (PDF; 17 kB)
- ↑ Werner Flume, BGB General Part, The Legal Business Volume 2 , 1992, p. 254 ff.
