Novation

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Under Novation ( Latin Novatio , (ER) innovation, innovation contract ) are understood in German law of obligations to lift an existing contractual obligation by creating a new obligation. Their practical importance is now of little importance.

General

In contrast to property law , the law of obligations is not subject to any statutory type constraints , so there is no numerus clausus of permissible legal transactions . Therefore, any contractual obligation can be agreed, so that new types of contract ( contract sui generis ) may arise, provided that they are in accordance with the legal system . Novation is not regulated in the BGB , but is permissible because of this contractual freedom under the law of obligations .

history

As the Latin term suggests, novation was already known in Roman law . The novation played a much bigger role in Rome than it does today, because the Roman view did not allow a liability to be changed afterwards or for one of the people involved in it to be exchanged. The basis for a novation had to be an existing liability ( Latin obligatio ). In the institutions of Gaius, novation was regarded as one of the five ways of canceling a liability. The role of novation was significant because subsequent changes to an obligation, be it in content or through a change in the person of the creditor ( assignment ) or of the debtor ( assumption of debt ), were only possible through novation. Because of the often difficult determination of this willingness to renew debt, it was valid since the year 533 with Justinian I that a novation should only occur if it was expressly wanted. Therefore, the novation and treaty amendment coexist in today's German law.

The term novation appeared in Germany for the first time in the late Middle Ages , when a legal dispute with a debtor delegation (exchange of debtor) had to be decided in 1501/02 . In the case of Rink / Diepach (1503) the plaintiff stated that the defendant had become a debtor by changing the obligation ( Latin delegationem etiam animo novandi obligationem ) .

content

According to Section 311 (1) BGB, a contract between the creditor and the debtor is required to establish an obligation through a legal transaction and to change the content of an obligation . The novation falls under this regulation, because it is a contract between the obligee and the debtor, which on the one hand brings an existing obligation - and thus a claim of the obligee - to extinction and on the other hand creates a new obligation - through a new claim. The old contractual relationship is the legal basis for the new contractual relationship. Since the previous claim is no longer the subject of the contract, the associated ancillary rights , loan collateral and defenses and objections expire . All security interests such as surety or lien established for the expired claim are lost.

Because of these extensive legal consequences, there must be a clear will of the parties for a novation. Because of these drastic legal consequences of a novation, according to the BGH , when determining the will to cancel the old debt relationship and replace it with a newly established one, caution is advised and therefore, in case of doubt, only a mere contract amendment can be assumed The contract expires and a new contract with new content is created.

Examples of a novation are:

Demarcation

In the case of a contract change, an obligation is only changed in terms of content, while it expires in the case of novation. It therefore depends on the content of the contract and the will of the parties whether there is a novation or not. If the parties agree on a "supplement to the contract" or an "addendum", it can be assumed that the contract will be amended so that the previous contract will be continued. If, however, there is no reference to the "old" contractual relationship, then, according to the rebuttable presumption, a novation has occurred, with the result that the old contractual relationship expires. Since the loan collateral should remain in place with secured loans, follow-up financing and prolongation are considered to be mere changes to the contract. In contrast to a novation, the consumer is not granted a new right of use of capital after the end of the total term in the case of spurious follow-up financing if, after the fixed interest period, only new loan interest is agreed for the future and the terms and conditions are carried out in accordance with the original loan agreement.

On the other hand, a novation can be seen in debt rescheduling , consolidation , bridge financing , loan repayment or the assumption of debt . For classification as a novation, it is crucial that the debtor is granted a new right of use of capital and that the previous loan agreement is no longer intended to represent a business basis.

Legal classification

Change of an obligation

Changes to the contractual relationship:

International

Unlike in Germany, novation is regulated by law in Austria and Switzerland .

In the Austrian law of obligations , the novation according to § 1376 ABGB is the change of rights or obligations (in the obligation relationship) "without the addition of a third person" and includes either the change of the legal basis or the change of the main subject of a claim. In these cases, “the old obligation changes into a new one”. The old obligation is terminated according to § 1377 ABGB, while a new obligation begins at the same time. The creation of the new liability depends on the legal validity of an old liability ( accessory nature ). Ancillary rights of the old liability also expire in Austria (§ 1378 ABGB).

The novation is also known in the Swiss Code of Obligations , where it is also called innovation . An innovation within the meaning of Art. 116 OR is to be understood as the conversion of an old obligation into a new one, whereby the reason for the obligation of the new does not consist in that of the old, but in the independent legal transaction that brings about the innovation. An old debt is therefore eliminated and tied to an associated existence of a new debt. The law assumes that the establishment of a new debt does not pay off the old debt. According to Art. 117 OR, the recognition of a balance in the current account has a novation effect.

In France , the novation ( French novation ) is a contract of obligations under Art. 1271 ff. Code civil , for which every claim is suitable. There are three types of novation:

  • Creditors and debtors replace the old one with a new one,
  • a new debtor replaces the old one,
  • a new believer replaces the old one.

The novation is therefore only effective if there is a debt to be replaced.

In English law, the novation is (as novation of a contract English novation of contract ) known. It concerns either the replacement of a contracting party in the case of an existing liability or the replacement of a liability with a new one. When the new guilt is justified, the old one also expires here.

Individual evidence

  1. ^ Max Kaser, The Roman Private Law , 1955, p. 542
  2. ^ Carl Salkowski, On the Doctrine of Novation According to Roman Law , 1866, p. 1
  3. ↑ Jechlin / Heyn; Helmut Coing, The Reception of Roman Law in Frankfurt am Main: A Contribution to the History of Reception , 1962, p. 124
  4. ↑ BGH NJW 2003, 59
  5. ↑ BGH NJW 1986, 1490
  6. ↑ BGH, judgment of October 26, 2010 - Az .: XI ZR 367/07
  7. ↑ BGH, judgment of March 14, 2013, Az .: III ZR 417/12, No. 11
  8. ↑ Thorsten S. Richter, Contract Law , 2011, p. 501
  9. ↑ Otto Palandt / Christian Grüneberg, BGB-Commentary , 73rd edition, 2014, § 311 Rn. 10
  10. ^ BGH NJW 1982, 2193
  11. ↑ Kai-Oliver Knops, Handbook on German and European Banking Law , 2008, p. 2476 Rn. 34
  12. ↑ BGH, judgment of 6 December 1994, Az .: XI ZR 99/94
  13. ^ Online textbook Civil Law Austria , Chapter 7, Novation
  14. ↑ BGE 60 II 332 E. 2
  15. ↑ Tobias Maurer, assumption of debt , 2010, p. 58 f.
  16. ↑ Tobias Maurer, assumption of debt , 2010, p. 127 ff.
  17. ↑ Kathryn J. Haupt, Washington Real Estate Fundamentals , 2006, p. 105