Intercession

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Intercession ( Latin intercedere , "dazwischentreten") is the name given in private law to the liability of a security provider for the liabilities of a third party, for example through sureties , guarantees , loan orders , letters of comfort , acceptance of debt or assumption of debt .

General

If a creditor does not assess the creditworthiness of his debtor particularly highly, he can request security from his debtor or from other third parties . In the case of intercession, it is not the debtor himself who usually provides the loan collateral, but a third security provider. These are mostly personal collateral (guarantee, warranty, credit contract, letter of comfort, assumption of debt or debt assumption; Personalinterzession ), but in the broadest sense, are real collateral ( mortgages , assignment of security , transfer of ownership , transfer of ownership of motor vehicles or pledge ; Realinterzession ) in question, when the Protection seller is not the same as the borrower . The uptake of loans in foreign interest is to be regarded as intercession.

history

Antiquity

In the Roman magistracy , the fundamental addition to the annual annuity on the principle of collegiality was based, could by the ius intercedendi the official act of under- or sibling minister in the form of contradiction ( veto ) override.

For the people's tribune (tribuni plebis) of the republic , the constitutional regulation of “ interceding ” (intercedere) was of enormous importance. Originally used as an effective instrument to enforce the ius auxilii (right of assistance) to protect individual citizens against arbitrary state decisions, the right of intercession of the tribunes developed into an important political power factor.

The Senatus consultum Velleianum from around 46 AD declared obligations of women from guarantees (fideiussio) and loans ( mutuum ) to be ineffective if they entered into the obligations of third parties. The Senatusconsult should protect the woman inexperienced in legal matters . Borrowing for others (mutui datio pro aliis) was also prohibited.

The law of intercession did not apply in times of crisis, as dictatorial orders were absolute and irreversible during this six-month extraordinary term of office.

In the principate , through the deliberate separation of the plebeian office (tribuni plebis) and the official authority (tribunicia potestas), the tribunician legal competence ( potestas ) of the tribunate was transferred to the emperor in a class-neutral manner , who thus exercised control over the right of intercession.

Justinian I later also forbade the intercession of wives in favor of their husbands (authentica si qua mulier) after 535 ; only the use of the credit for the benefit of the wife made their intercession effective.

Modern times

The General Prussian Land Law (APL) of June 1794 determined in the guarantee law to what extent wives may vouch for their husbands (I 14, § 220 APL) and referred to II 1 Section 5, § 342 APL: “Should be done for the benefit of a stranger If the wife's contribution is also liable for the guarantee, the husband's consent is required ”. This expressed concern that the wife, because of her special relationship with the husband, could easily be pushed into informal statements. If a woman gains advantages from her guarantee, her guarantee is legally effective (I 14, § 241 APL).

The French Civil Code (CC) of March 1804 originally provided that the wife was not allowed to grant property or mortgage to a stranger either jointly or alone without the cooperation of her husband or without his written consent (Book I, Title 5, Chapter 6, Art. 217 CC). The Austrian ABGB of January 1812 allowed intercessions regardless of gender. The "intercessions of women" of the German APL were lifted in December 1869.

Legal issues

The intercession always requires three parties, namely the intercession debtor ( protection seller ), the intercession creditor ( lender and protection buyer ) and a beneficiary third party ( borrower ).

The legal provisions on guarantees (§ § 765 ff. BGB ), loan orders ( § 778 BGB), assumption of debt or assumption of debt ( § 414 BGB) do not provide any restrictions for certain legal entities . Even today, however, the case law on relatives ' guarantees and spouses' guarantees is in a context of the Roman Senatus Consultum Velleianum. Since October 1993, the case law has addressed the relatives 'and spouses' guarantees after the Federal Constitutional Court (BVerfG) had asked civil jurisdiction to use the general clauses of immorality or in the case of guarantees that place an unusually heavy burden on one of the two contracting parties and are the result of structurally unequal bargaining power To observe good faith , which the Federal Court of Justice (BGH) has followed since February 1994. Since then, all intercessions in which there is a noticeable imbalance between the scope of liability and the performance of the collateral provider have been ineffective.

International

Austria

With intercession, someone in Austria is responsible for a material debt that is foreign to them. Section 1349 of the Austrian Civil Code (ABGB) stipulates that “anyone else who is entitled to freely manage their assets can take on third-party obligations regardless of gender”. If a consumer joins a liability as a co- debtor, surety or guarantor (intercession), the obligee has to inform him of the economic situation of the debtor if he realizes or has to recognize that the debtor will probably not or not completely fulfill his obligation. If the entrepreneur fails to provide this information, the intercedent is only liable if he has accepted his obligation despite such information (§ 25c KSchG ). The judge can moderate or even completely waive the binding nature of an intercedent (§ 25c KSchG) insofar as it is in an unreasonable disproportion to the performance of the intercessor, taking into account all circumstances, provided that the circumstances that justify or have brought about this disproportion are justified by the Liability for the creditor were recognizable (§ 25d KSchG). Regarding the dependents' guarantee, the Supreme Court stated that immorality is to be assumed if the following conditions (cumulatively) are met: disapproval of the content of the intercession agreement, disapproval of the circumstances in which it came about due to the surety's limited freedom of choice and finally the knowledge or negligent ignorance of these criteria by the lender.

Switzerland

When it comes intercession in Switzerland in company law matter that a corporation collateral for debts of their parent or sister company of her or general shareholders ordered. The focus is on the shareholder entering into a guarantee in accordance with Art. 492 OR or a guarantee in accordance with Art. 111 OR; The cumulative assumption of debt is also conceivable. The following criteria are relevant for examining the intercession problem:

  • Purpose of the company: Legal transactions are only valid if they are carried out within the framework of the company's statutory purpose and serve its interests and not exclusively those of the beneficiary.
  • Prohibition of double taxation .
  • Prohibition of the return of contributions: A stock corporation may not return the paid-in capital to shareholders or persons closely related to them. In particular, the nominal share capital, participation certificate capital, premium and the legal reserves are protected. Disposals of the company that violate the prohibition on the return of contributions are null and void ( Art. 680 Para. 2 OR).
  • Hidden profit distribution: The consideration for a loan or the provision of a security must be checked according to the principle of "at arm's length" , so it must be checked whether such a service would also be granted to an uninvolved third party. If this is not the case, the concluded transaction is illegal and therefore invalid ( Art. 678 OR).

Here, too, there is a security provider who provides security for another borrower. With regard to the intercession, the protection seller is limited to stock corporations.

Other countries

In England and the USA the terms intercession in favor of the shareholder ( English upstream security ) or intercession in favor of a sister company ( English cross-stream security ) are common.

international law

In the field of international law and international relations, the term intercession usually refers to activities of a state aimed at influencing the internal or external affairs of another state that are not associated with coercion or the threat of coercion. Such measures include, for example, the giving of advice or admonitions at the government level and have either the pursuit of the self-interest of the state from which these measures originate or serve to enforce the position of the international community or an alliance of states .

However, the specific use of the term in international law and diplomatic language is inconsistent. As a rule, it is used to separate corresponding activities from intervention measures . In this sense, unlike intervention, intercession is not associated with coercion and therefore does not constitute an encroachment on the sovereign rights of the state concerned to exercise its corresponding domestic or foreign policy decision-making and action powers. Occasionally, the use of the term is limited to measures aimed at influencing the domestic political affairs of a country.

In addition, the term also serves in part as a generic term for intergovernmental mediation and other forms of good service as well as occasionally to describe the right of a state to the protection of its national minorities in other countries.

The prevailing opinion in international law theory understands intercession as the giving of friendly advice or tactful admonitions between governments . The influence can affect both the external and internal affairs of a state.

literature

Individual evidence

  1. ↑ Ulpian , Digesten , 16,1,2,1.
  2. ^ Paul Jörs / Wolfgang Kunkel, Leopold Wenger, Römisches Privatrecht , 1935, p. 217
  3. ↑ Yvonne E. Kowolik, intercessions from close range persons , 2008, p 25
  4. ↑ Novellae , 134, 8.
  5. ↑ Wolfgang Ernst, Interzession , in: Reinhard Zimmermann, Rolf Knütel, Jens Peter Meincke (Eds.), Rechtsgeschichte und Privatrechtsdogmatik, 1999, p. 395 ff.
  6. ↑ Rudolf von Kraewel, treatises , in: Journal of Law and Justice, Volume 4, 1870, p 115
  7. ↑ Königlich Prussischer Staats-Anzeiger, 1869, p. 4669
  8. ^ Johann Jakob Bachofen , Selected Teachings of Roman Civil Law , 1848, p. 17 f.
  9. ↑ BVerfGE 89, 214 , 230
  10. ↑ BGHZ 125, 206
  11. ^ OGH , judgment of October 22, 1986, Az .: 1 Ob634 / 86
  12. ^ Arnold F. Rusch, Intercession in the interests of the shareholder , 2004, p. 8
  13. ↑ Herbert Krüger, Hermann Mosler, Ulrich Scheuner, Ibero-Americanism, 1999, p. 147