As a rule, the legislature provides for the bearer bond (§ ff. BGB ), which can be transferred to a new purchaser as a bearer paper by simple agreement and handover like a movable thing . This form has the highest marketability, which facilitates trading on stock exchanges and is the norm for on-exchange trading. Marketability is increased by the fact that even stolen, lost or stolen bearer bonds can be acquired in good faith ( (2) BGB; certain exceptions for credit institutions), which does not apply to movable property ( (1) BGB).
The issuer, however, has the freedom to restrict the marketability of his bonds by making their transferability more difficult. This can be done in the form of an order bond. In addition to the agreement and the handover, an endorsement for the transfer of the bond is mandatory; without an endorsement, the rights from the bond will not be transferred despite the transfer. Order bonds are a form of commercial obligation and thus belong to the approved order papers according to (1) HGB . The positive order clause must therefore always be taken into account, because its absence turns the bond into a recta paper .
Initially, the issuance of bearer bonds was subject to a legal approval requirement by the Federal Minister of Economics for a long time, because the approval requirement for bearer bonds codified in blank endorsement and thus approximated them almost completely to a bearer paper. This possibility of circumvention was eliminated by the introduction of BGB in June 1954. According to this, order bonds could only be placed on the market as part of an overall issue with government approval. This state approval requirement for both bearer and order bonds was abolished in December 1990 for the purpose of liberalizing the capital market. Today, order bonds only play a role for institutional investors such as credit institutions , insurance companies or investment funds .BGB had been in effect since the BGB came into force in January 1890. This approval reservation transferred a certain responsibility to the Federal Finance Minister for the functionality of the capital market and the creditworthiness of the issuer. Initially, order bonds served as a substitute for bearer bonds - in order to circumvent the approval requirement for bearer bonds - and were placed by the industry on the order of the issuing bank; this in turn provided the papers with a
Types of order bonds
As issuers of order bonds issuable companies come from Banking , industry , trade and transport in question. The issuer of an order bond deliberately makes marketability more difficult because he can assume that the obligee of this bond is not planning to transfer it to other buyers. The law does not permit order bonds issued by a non-merchant; they are to be qualified as rectal papers in the form of abstract promises of debt in accordance with German Civil Code. Savings bank bonds are regularly classified as order bonds.
Order bonds with a blank endorsement belong to the "technical" bearer bonds. According to RechKredV , they are included in the securities , provided they are marketable (i.e. meet the requirements for stock exchange admission) and accounted for as securities. Non-negotiable bonds that are part of an overall issue are not to be shown as securities but as receivables ( No. 2 and 11 No. 2 RechZahlV).
If credit institutions act as issuers of bonds on order, these (as well as bearer bonds) are not counted as part of the deposit business within the meaning of KWG .(1) sentence 2 no. 1
- Michael Hippler: Accounting for bonds in the annual financial statements of insurance companies . 1998, p. 14.
- Theodor Baums, Andreas Cahn: The public's debt financing for the stock corporation ( Memento of the original from January 30, 2012 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. . 2006, p. 16 (PDF; 385 kB)
- Hermann Staub, Ingo Koller: Großkommentar Handelsgesetzbuch, Volume 4 . 2004, p. 53 f.
- Hans-Otto Linnhoff: bonds with warrants . 1956, p. 170.
- Commentary of the German Civil Code (BGB) on § 808 a , marginal no. 2 and 89, 1981, p. 117.
- Financial Institutions Accounting Ordinance ( Memento of the original of December 25, 2010 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice.
- Information sheet: Notes on the facts of the deposit business ( Memento of the original of January 24, 2011 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , BAFin, January 2009.