The verb for “ pour together” ( Latin confundere ) is the basis from which the German adjective “konfus” originated, which today in the metaphorical sense stands as a confusion for confusion or disorder. The foreign word “confusion” was later translated by the German, Austrian and Swiss law books as “unification”. Therefore, confusion is not a legal term, but the term is preferred to the term association in the specialist literature . In Germany, "confusion" first appeared in the Middle Ages in 1454.
A debt ratio is conceptually a creditor and a debtor requires both fall together in one person, it goes out. Confusion therefore presupposes personal identity in the correspondence between people. Confusion is “the coincidence of a right and the corresponding obligation in a legal subject ”. This coincidence expires the claims from the perspective of the obligee and the corresponding liabilities from the perspective of the debtor. Thus, the confusion in addition to repayment , debt relief , fulfillment and the fulfillment surrogates ( set-off and deposit ) is a reason for the expiry of affected claims and corresponding liabilities.
Confusion may at only subsequently succession occur, such as when the creditor his claim to the debtor assigns or tenant of a rented apartment the landlord inherited . On the other hand, there is no confusion with the combination of debts and ancillary obligations from a security agreement . If, for example, the surety inherits the main debtor or vice versa, the obligation from the surety remains in place if there is a creditor's interest in the continuation of the ancillary liability. No one can vouch for their own guilt (see (1) BGB ), but everyone can become a guarantor for their own guilt through legal succession.
The mixing of liquids of different owners ( Latin confusio ) was the starting point in Roman law , where different legal objects collide. This union was also applied to the meeting of demand and obligation in one person. It was clear to Seneca that no one could be his own creditor or debtor. Classical Roman law already declared confusion to be part of ius civile . As a result of the confusion of the debtor's assets with those of the obligee, either the portion of the liability's assets are transferred from the debtor's assets to the obligee's assets or the portion of the assets remains in the debtor's assets. "If someone becomes heir to his debtor, then as a result of confusion he is no longer a creditor". When guilt and demand were united in one hand ( Latin confusio ), fulfillment ( Latin solutio ) finally occurred .
At the Regensburg court and Reichstag in April 1454, the Mainz vicar general Johann (es) von Lysura gave a speech in which the word "confusion" first appeared in German. He spoke of the fact that other nations will "completely and even annihilate the German nation with shame and great confusion". Confusion had to be understood here as “disorder”.
The General Prussian Land Law (APL) from June 1794 provided for the confusion as an "association". "If the rights of the obligee and the obligations of the debtor come together in one person, then both are canceled by this association" (I 16, § 476 APL). The association had to take place for an irrevocable legal basis (I 16, § 478 APL); in the event of revocation, the rights and obligations were suspended until revocation (I 16, § 479 APL). If the surety inherits the main debtor or vice versa, the rights of the obligee remain (I 16, § 495 APL). In the first part and its 16th title there are further regulations on the unification up to I 16, § 512 APL.
The Austrian ABGB came into force in January 1812 and regulated the confusion as an "association". The Swiss Code of Obligations of January 1883 also took into account “unification”. The first draft of the German Civil Code from December 1887 also provided for as Section 291 of the German Civil Code: “Association. The obligation lapses when the claim and the obligation are combined in the same person. ”The second commission deleted this provision in 1897“ considering that the rule, insofar as it is correct, results from the nature of the obligation and beyond the exceptions contained in the draft can be easily deduced ”.
The legal institution of confusion is not expressly regulated in the BGB, but is assumed as a self-evident legal principle in many regulations . As a result, cases are not regulated by law, so that the case law had to deal with the issue. The Federal Court of Justice (BGH) dealt with the confusion - which it also referred to as an association - several times.
In particular, the law of inheritance with legal succession is affected by confusion. If an heir was the testator's creditor , then with the death of the testator in the person of the heir, claims and guilt are combined ( Paragraph 1 BGB ); this association usually leads to the extinction of the claim, since no one can be his own debtor. Then BGB apply. According to the BGH, this coincidence of creditor and debtor is a recognized reason for extinction. The guiding principle of this judgment reads: "If a right to conveyance expires due to the coincidence of creditor and debtor (confusion), the notice of conveyance existing to secure it is also lost ". Each conclusion of a contract presupposes a difference in persons; Nobody can conclude a sales contract with himself .
Two of these BGH judgments met with severe criticism in the judicature . In the first case, the security purpose of the guarantee , mortgage and lien takes precedence over the accessory dogma, as in the provisions of Section (1) sentence 2 BGB, (1) sentence 2 BGB, (1) sentence 2 BGB and para. 2 InsO can be recognized. The primary security purpose requires a corresponding restriction of the consequences of confusion. In the second case, exercising a right of first refusal only leads to the transfer of the contract without renewed contract negotiations. Both judgments denied a believer what was due; they violated one of the highest legal principles , against the principle of each his own ( Latin ius suum cuique tribuere ). Despite the confusion, a claim that the obligee must cede to a third party does not expire ; nor if he is obliged to reassign as a result of the security agreement.
The BGB speaks in the inheritance law exceptions of §BGB, Abs. 2 BGB, BGB, BGB and sentence 1 BGB more precisely of the "union of law and liability or of law and burden".
There is no confusion if the debt is acquired by one or more joint debtors; rather, this acquisition of a claim only has an individual effect ( (2) BGB) with the result that the claim that has not expired in this respect is transferred to the amount of the obligation to compensate the other debtors. The union of a joint and several debtor with the obligee thus only has a relative effect on him; the others remain under arrest. Due to the lack of meaning, a rental or loan agreement expires if the tenant or borrower acquires the property (in particular when converting apartment rent into apartment ownership ) or if, conversely, the owner inherits the tenant or borrower.
- Securities law
In securities law, the exclusion of confusion and further transferability after repurchase by the issuer or drawee in the case of bills of exchange and checks ( Para. 1 and 3 WG and Para. 3 WG; Para. 1 CheckG apply) and Para. 3 ScheckG). Checks and bills of exchange have lost their meaning today, so that questions of confusion are no longer an issue.
- Constitutional law
In constitutional law , the argument of confusion means that the state cannot be both the bearer and addressee of fundamental rights . According to this, the basic rights generally do not apply to legal entities under public law insofar as they perform public tasks . This applies not only if the state appears directly - as state authority of the federal government or a state - but in principle also if it uses an independent legal structure to fulfill its tasks (in the judgment: social insurance agency ).
When consolidation is the property law counterpart of confusion, because it falls entitled and obligated party of a right in rem in a person along. For example, (1) BGB is a case of consolidation, because the real lien expires if it comes together with the property in one person.
No case of confusion is the obligation , even if it is often described as a "duty to oneself" but is meant only that no enforceable obligation exists, but only in their own interests a certain behavior is advisable.
In Austria and Switzerland , confusion as an "association" is even regulated by law. In Austria the "association" is mentioned in ABGB . However, according to ABGB, claims and liabilities entered in land registers are not canceled by an association until they have been deleted . The renting of one's own thing is legally effective according to ABGB if someone else is entitled to use it.
In Switzerland, OR regulates the association. It occurs when the characteristics of the obligee and the debtor come together in one person, so that the claim is to be regarded as extinguished by union. Property liens and securities are excluded (Art. 118 Para. 3 OR). Unite with the surety 's liability as principal debtor and that as a guarantor in one and so the creditor remain due to him under the guarantee specific benefits maintained the same person ( para. 2 CO). In Swiss securities law, in accordance with Para. 3 OR, the endorsement can also be given to the drawee, the issuer or any other party obliged to switch. OR provides that the endorsement of the check ("check") can also be made out to the issuer or any other person obliged to check.
The extinction of liabilities as a result of the collapse of creditor and debtor is known in numerous other European codifications. In France , Art. 1349 Civil Code provides that a confusion ( French confusion ) results from the combination of the obligee and the debtor of the same obligation in the same person. In Spain , liabilities expire through confusion ( Spanish confusión ) according to Art. 1156 Código civil (see also Art. 1192–1194 Código civil). In Italy, articles 1253–1255 Codice civile regulate confusion ( Italian confusione ). Even the English law follows the unwritten there principle of common law with the concurrence of rights ( English merger of rights and liabilities ). It is most commonly found here in the Law of Land .
There is also legal confusion outside of Europe, for example in Brazil (Art. 381–384 Código civil; in force since January 2003) or in Japan (Art. 520 ZGB-Japan). According to Art. 1275 Obligations and Contracts expire on the Philippines a commitment to a time at which the creditor ( English creditor ) and the debtor ( English debitor meet) in the same person ( English merge ).
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- Peter Müssig, Private Business Law: Legal Foundations of Economic Action , 2015, p. 188
- Joachim Gernhuber, The Fulfillment and Its Surrogates , Volume 3, 1994, p. 417
- Philipp Willi von Mosen, On Confusion in Obligations According to Roman Law , 1857, p. 3
- Joachim Gernhuber, The Fulfillment and Its Surrogates , Volume 3, 1994, p. 417
- Seneca, De beneficiis , Lib. V
- Sextus Pomponius , Digest , 46, 103, 7
- 1. 21. § 1 Digest 34, 3. 1. 50. 71; Digest 94, 1
- Digest 18, 4, 2, 18
- Herennius Modestinus , Digesten , 46, 3, 75
- Andreas Gardt (Ed.), Nation und Sprache , 2000, p. 76
- General Land Law for the Prussian States , Volume 2, 1863, pp. 171 ff.
- Protocols I, Volume I: General Part and Law of Obligations , Section I, Section II Title I, 1897, p. 376
- Alpmann Brockhaus, Fachlexikon Recht , 2005, p. 804
- BGHZ 48, 214 , 218
- BGH NJW 1981, 447
- BGH NJW 2000, 1033
- BGH NJW 1981, 447 and BGH NJW 2000, 1033
- Andreas Wacke , The Confusion: Reason for Debt Repayment or Just Exclusion of Action? , 2009, p. 546 ff.
- Ulpian , Digesten , 1,1,10pr.-1
- Andreas Wacke, The Confusion: Reason for Debt Repayment or Just Exclusion of Action? , 2009, p. 562
- BVerfGE 21, 362 , 370
- Justo P. Torres jr, Obligations and Contracts , 2003, p. 139