Legal session (Germany)
The legal session ( Latin cessio legis ) is a legal institution under civil law that determines the transfer of a claim by virtue of law , without the need for a special legal transaction .
In contrast to assignment ( § 398 BGB ) as a legal transaction, the new creditor ( assignee ) automatically takes the place of the old creditor ( assignor ) with his claim against the main debtor (self-entry), because the law requires it. The contracting parties cannot prevent a legal session.
In the cases of the legal transfer of claims, this is an assignment by virtue of law. In doing so, the law refers to the provisions that it has provided for the legal assignment by declaring the provisions on assignment to be applicable accordingly ( Section 412 BGB). Therefore, in the event of a legal session, the provisions on the assignment of ancillary rights ( § 401 BGB), the information obligations of the assignor ( § 402 BGB) and the protection of the debtor ( § 404 , § 407 , § 408 BGB) apply in particular . The assignment of ancillary rights is also a legal session.
Cases of legal session
The BGB finally enumerates the types of legal claims. Anyone who loses rights to property through foreclosure may satisfy the creditor; in that case the claim against the enforcement debtor is transferred to him ( Section 268 (3) BGB). If the joint and several debtors pay for the joint debt, the claim of the obligee is automatically transferred to him or her ( Section 426 (2) BGB) If the surety is used in the case of a guarantee ( Section 774 BGB) by paying for the main debtor , the main claim is passed on to him. The same applies to mortgages ( § 1142 ff. BGB) if the property owner pays for the debtor or in the case of the right of lien ( § 1225 BGB) when the pledgee pays for the debtor, whereby the pledge is redeemed in accordance with § 1249 BGB. If a relative pays maintenance instead of the person liable for maintenance, he / she is granted exemption in accordance with Section 1607 (3) BGB.
In addition to the cases regulated in the BGB, legal sessions are contained in special laws, for example in Art. 47 Para. 3 WechselG , § 86 VVG ( insurer ) and § 6 EFZG ( employer ) or in § 43 RVG . The social law provisions in § § 115 et seq. Must also be observed . SGB X , § 94 SGB XII , § 187 , § 203, § 332 SGB III old, § 91 BSHG old and in § 7 UVG old
The transfer of claims by virtue of an act of sovereignty, for example from § 835 ZPO, is also equivalent to the legal session .
In the area of social law , the case often arises that social service providers, through an administrative act ( § 93 SGB XII ), transfer impoverished social recipients for these claims to the return of a donation ( § 528 BGB) and then assert these to cover their costs. If a person entitled to benefits has a maintenance claim according to the German Civil Code (BGB) for the time for which benefits are provided, this is transferred to the social welfare institution up to the amount of the expenses paid together with the maintenance law information claim ( § 94 SGB XII).
The surety has undertaken to take responsibility for the liabilities of a third party ( Section 765 (1) BGB). If the surety now pays the obligee from his assumed liability, the claim of the obligee against the third party is automatically transferred to the surety according to § 774 BGB. In all forms of legal session, a payment or fulfillment triggers the legal assignment process without the parties involved having to undertake a legal assignment. With the guarantee, the law intends on the one hand that the now satisfied creditor loses his claim against the main debtor because he is no longer entitled to any claim. On the other hand, the surety should be given the opportunity to take legal action against the debtor with the claim that has been transferred to him by virtue of the law, in order to compensate for the loss of assets suffered by the use of the surety.
Subrogation for insurance companies
A frequent application of the legal session is the transfer of claims from unauthorized acts where the risk of damage is covered by damage insurance. The injured person's insurance is initially responsible for the damage, but is automatically granted the injured person's claim for compensation by virtue of the law ( Section 86 (1) VVG ). The insurance company can then assert a claim for damages against the injuring party. The risk of receivables - for example if the damaging party is insolvent - is then also transferred to the insurance company. The transition of the claim is determined as a rule according to § 86 VVG and § 116 SGB X .
The public law also knows the possibility of subrogation. Be officers physically injured or killed, a legal claim for damages, which they are entitled as a result of injury or killing against third parties in accordance goes § 76 BBG that regard to the employer on, when during a based on the injury lifting of the ability to service or as a result of injury or killing is obliged to provide benefits. This is also regulated by state law, so that the employer of an officer injured by a third party is entitled to compensation, for example for the costs of medical treatment or remuneration (Section 103 of the Hessian Civil Servants Act - HessBG). If, for example, a civil servant from the State of Hesse is culpably injured in a traffic accident by another road user, the employer, i.e. the State of Hesse, may pay the costs of a hospital stay and - especially in the case of longer sick leave - the salary of the injuring party or request reimbursement of their liability insurance.
- Bernhard Laberenz: The legal subrogation in international private law . University of Frankfurt, dissertation 1969, Augsburg, 1969, SWB catalog no .: 002216671.
- Dieter Medicus : Civil law. A presentation for exam preparation, arranged according to the requirements. Heymanns, Cologne 1968. 23rd, revised edition with Jens Petersen : Vahlen, Munich 2011, ISBN 978-3-8006-3908-3 (Rnr .: 620, 739, 906, 909, 945 ff).
- Eberhard v. Olshausen: Creditors' law and protection of debtors in the case of subrogation and recourse , at the same time: Habilitation thesis, University of Bonn 1986/87, ISBN 3-452-21263-7 .
- Katharina von Koppenfels-Spies : The cessio legis , also: University of Münster, Habilitation thesis 2005, Mohr Siebeck, Tübingen 2006, ISBN 3-16-148989-6 .
- Simone Schims: The legal subrogation . Effectiveness and function for the recourse in the case of third-party debt protection. Writings on civil law (Volume 337), Duncker & Humblot Berlin, ISBN 3-428-11929-0 .
- Michael Wachsmuth: Requirements and effects of the insurance legal legal session: a comparison with the assignment right of the BGB . Free University of Berlin, dissertation 1979, SWB catalog no .: 007903375.