Notes are securities whose transferability by the design as a bearer document ( bearer bond ), Order paper ( Order bond ) or name paper (registered bond) by its issuer in the bond conditions is controlled. The transferability affects the marketability of the securities, which is the lowest in the case of registered securities such as registered bonds. Because of its lack of marketability, it is only suitable as an investment property for institutional investors .
The law assumes that bonds normally as bearer bonds issued are ( para. 1 BGB ). As bearer papers, these have the highest marketability, because they can be transferred by means of an informal agreement in rem and handover ( ff. BGB). The respective owner , irrespective of whether it is lawful or unlawful ( (1) BGB), is also the creditor of the documented claim. Accordingly, the debtor must also pay the holder of bearer bonds that have been stolen, lost or otherwise circulated without the will of the debtor, provided that he is not acting deliberately or with grossly negligent ignorance.
This is not the case with registered bonds. Unlike their counterpart in terms of membership, registered shares , they are not part of the (born) order papers . The debtor has to pay directly ( Latin recta ) to the creditor named in the deed, so that it is - by virtue of its design - registered papers. The consequence of this is that the rights from registered bonds can only be transferred to a new creditor ( assignee ) by the person entitled in the document ( assignor ) by way of assignment . With the assignment, the ownership of the document is transferred ( Paragraph 2 BGB), the assignee has a right to surrender against the assignor under Paragraph 1 BGB. The right to paper (right of ownership of the document) thus follows the right of paper (right of claim). Since the law of obligations applies through the assignment, the acquisition of registered bonds in good faith is excluded. Rather, registered bonds require a verification of legitimacy when purchasing and redeeming them. The person entitled is the person named in the certificate or someone who can identify himself through a complete series of assignments that must be traced back to the issuer of the certificate.
Registered bonds cannot be traded on the stock exchange because the owner of the paper is not entitled to exercise the documented right. Because they are difficult to transfer, registered bonds are not suitable for stock exchange trading . Stock exchange trading requires the marketability of the securities, which is always present in bearer papers (bearer bonds) and in registered shares only if their last transfer - and only this - has a blank assignment ; Registered bonds are not mentioned in the conditions of the Frankfurt Stock Exchange . A blank assignment is not provided for in the case of registered bonds or is expressly excluded because the issuer wants to make a later transfer more difficult or even prohibit the chosen form of the registered bond. If a later transfer should not be ruled out, an issuer can choose the form of bearer or order bond.
The marketability also decides on the accounting treatment of the bonds. Registered bonds do not belong to the marketable securities even if they were created through the transfer of bearer bonds (BGB).
The Securities Trading Act (WpHG), which deals with investor protection , does not mention registered bonds in its definition of the term "securities" ( (1) No. 3 WpHG) and only includes bearer and order bonds. This took into account the fact that registered bonds are not being acquired by private investors .
Registered bonds are usually only acquired by accounting investors, especially insurance companies and other institutional investors. While bearer bonds are accounted for as securities, registered bonds are posted as receivables , because registered bonds are not securities in the sense of accounting regulations. The reason for the separate disclosure is their long-term nature and lack of fungibility .
Due to the new regulation of HGB as of January 1, 2002, insurance companies can also choose whether the investments that were previously valued according to the strict lower-of-cost- or-market principle are now wholly or partially accounted for as fixed assets . The corresponding registered bonds must be intended to serve business operations on a permanent basis. If an asset is devoted to fixed assets, the moderate lower of cost or market principle applicable to fixed assets is to be applied. According to Paragraph 3, Clause 3 of the German Commercial Code (HGB), there is an option to undertake unscheduled depreciation to the lower fair value if the decrease in value is not expected to be permanent . According to (1) sentence 2 HGB, registered bonds are to be valued in accordance with the provisions applicable to fixed assets, so that according to (1) sentence 1 HGB, the acquisition costs at most are to be recognized for this. While leaving HGB recognition at nominal value to. Life insurance companies therefore prefer to purchase registered bonds because this avoids fluctuations in their balance sheet value.
Types of registered bonds
According to RechVersV , registered bonds include, in particular, registered Pfandbriefe, registered municipal bonds and registered Landesbodenbriefe as well as federal bonds registered in the name of the beneficiary in the debt register. Savings bonds / savings banks (capital) letters from banks / savings banks are predominantly issued as registered bonds. Private mortgage banks also issue registered Pfandbriefe and registered municipal bonds ( municipal bonds ).
Registered Pfandbriefe are usually only issued in minimum amounts of one million euros and, as they are not traded on the stock exchange, are unsuitable as an easy-to-sell ( liquid ) investment.
Assertion of the claim
Asserting means of claim name of a bond, that the legitimate owner of the paper and the recipient of the securitized herein requirement in maturity can demand his entitlement to benefit from the debtor to delivery of the certificate of the securitized herein law. The beneficiary named in the document is initially entitled to assert the claim. If the latter has transferred the claim by assigning the documented claim and handing over the paper to a third party, the latter is entitled to demand the documented performance from the debtor. The possession of the paper and a complete chain of assignments, which must be attributed to the issuer, justify the unreserved assumption of the material entitlement of the holder. The debtor may only raise the following objections to the holder :
- Document objections : the debtor can object, for example, to the lack of due date of the performance from the content of the document;
- Validity objections : of the instrument is debtor may be about the lack of capacity object of an assignee or the incompleteness of the Zessionskette;
- Personal objections : the debtor declares the set-off with a counterclaim.
If the exhibitor's debt is not yet due, he does not have to pay the owner until the due date. In BGB the debtor is granted the right to refuse performance as long as the assignee does not present a deed of assignment from the assignor or the assignor has not notified the debtor of the assignment in writing. In addition, German Civil Code (BGB) guarantees the debtor all objections and defenses regardless of the knowledge of the assignee. According to this, the assignee has to accept that the debtor will refuse performance due to deferral because the assignor has kept this deferral from the assignee. The debtor is only liable if the document is handed over to him ( BGB). However, if the obligee loses the document, he cannot initially demand performance from the debtor.
Loss of registered bond
If the document has been lost, however, the right enshrined in it is not lost. Necessary for the assertion of rights under lost registered debt is then a cancellation after completion array method . The decision to exclude the declaration of nullity replaces the lost document and gives the holder the original legal status ( FamFG ). The public notice procedure is generally provided for by law for registered papers, for example in BGB for the mortgage letter .
- Literature on registered bonds in the catalog of the German National Library
- Petroleum Storage Association, Conditions for the Issuance of Registered Bonds (PDF; 36 kB)
- Anne Gläßner, The restriction of the distribution of financial products , 2017, p. 190
- Eberhard Schwark: Stock Exchange Act. 1994, § 36 Item 11 and BFH , judgment of February 1, 1989, Az .: II R 128/85, BStBl. 1989 II p. 348 = BFHE 155, 563
- Frankfurt Stock Exchange, Conditions for Transactions on the Frankfurt Stock Exchange of April 15, 2009
- BFH, judgment of February 1, 1989, Az .: II R 128/85, BStBl. 1989 II p. 348
- Michael Hippler, Accounting for bonds in the annual financial statements of insurance companies , 1998, p. 69
- BR-Drucksache 823/94 of October 14, 1994, justification for § 8 RechVersV , p. 115
- Jörg M. Hipp: IAS / AFRS for insurance companies. 2007, p. 99 f.
- Michael Hippler: Accounting for bonds in the annual financial statements of insurance companies. 1998, p. 100
- BaFin dated February 10, 2009, information sheet on the licensing requirement in accordance with Section 32 (1) KWG , p. 3
- with the effect of paragraph 1 sentence 2 BGB
- with the effect of § 409 paragraph 1 sentence 1 BGB
- Michael Hippler, Accounting for bonds in the annual financial statements of insurance companies , 1998, p. 25