Pactum de non cedendo

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The pactum de non cedendo ( Latin for the contract that is not assigned ) or prohibition of assignment is a contract in civil law that prohibits the assignment of certain claims .


In general, claims are assignable, so they can change the creditor through a contract (assignment contract) . However, the law of obligations also provides in § 399 BGB cases in which claims may not be assigned by law because they are highly personal rights (§ 399, 1st half-sentence BGB) or because creditors and debtors have excluded the assignment by contract (§ 399, 2nd half-sentence BGB). Another legal assignment clause contains § 400 BGB, the assignment of non-attachable prohibits demands.


The legal assignment prohibition arises when a claim is established between the creditor and the debtor that would be generally assignable, for example in the purchase contract , rental agreement or any other contract in which payment by the debtor is not made step by step as consideration due to the payment terms . Both can agree that the resulting claim may not be assigned to third creditors. An assignment of claims made anyway is ineffective because the contract violates a legal prohibition ( § 134 BGB).

Legal Effects of a Prohibition of Assignment

The contracting parties can agree on an assignment ban, according to which the creditor of a claim may not assign this claim to a third party ( § 399 F. 2 BGB ). This includes advantages for the debtor in particular, because he keeps his previous creditor.


An exception to the pactum de non cedendo is made in § 354a HGB for monetary claims if debtors and creditors are merchants . If an assignment is made despite the agreed prohibition, the assignment is nevertheless effective in accordance with Section 354a sentence 1 of the German Commercial Code. However, the debtor may alternatively pay the previous creditor in discharge of the debt.

Almost all German large companies had in their terms and conditions of the assignment of receivables from supplies and services due to the legal possibility of § 399 excluded (2nd clause) BGB. In their largely standardized terms and conditions, public clients made the assignment of the claims against them dependent on compliance with formal requirements or on their consent . As a result, an important part of the current assets of suppliers was neither available for loan security nor for factoring and made borrowing more difficult for medium-sized businesses. Therefore, on 1 August 1994, as occurred § 354a , introduced HGB rules in force to ensure that trade receivables and services to both the credit protection to goods lenders ( reservation suppliers ) and lenders ( banks ) can also be used as factoring without affect the legitimate interests of the third party debtor .

Offense of § 354a HGB

The still applicable general regulation of § 399 (2nd half-sentence) BGB stipulates that a claim cannot be assigned if the assignment is excluded by agreement with the (third-party) debtor. The facts and legal consequences of § 354a HGB represent an exception for the case of such a (contractual) exclusion of assignment and limit it in two ways:

The consequence of this is that all non-monetary claims (claims in the broadest sense, e.g. restitution claims, claims from priority notice of conveyance ) do not fall under this provision, as do monetary claims for which the creditor and / or the debtor is not a businessman (or there is no commercial transaction / or is not directed against the public sector). So it remains with effective wage and salary assignment bans and assignment exclusions in wide areas (e.g. notification requirements in insurance conditions). The new regulation does not prohibit the exclusion of assignment among merchants, but then enables the debt-discharging payment to the assignor.

Limited exclusion of assignment

In addition to the unrestricted exclusion of assignment (contractual absolute prohibition of assignment), the provisions of §§ 399 BGB, § 354a HGB also cover the limited exclusion of assignment. This includes the consent, notification and formal requirements expressed by the third party debtor in the event that the claim directed against him is to be assigned. With the restricted exclusion of assignment, the third party debtor does not prohibit the assignment, but makes it dependent on his consent or compliance with notification or formal requirements.

The exclusion of assignment with reservation of consent does not violate the general terms and conditions law and is still possible. However, the third-party debtor may not “unreasonably” refuse his consent to the assignment if there is no (no longer) a legitimate interest in the prohibition of assignment or if the legitimate interests of the obligee in the assignment outweigh.

Legal consequences

Claims affected by the unrestricted exclusion of assignment can be assigned, even if the third party debtor has agreed a (still possible) exclusion of assignment. The third-party debtor may then - even if the assignment is disclosed - pay the assignor with discharging effect, especially in the case of silent assignment. This means that the third-party debtor no longer faces the problem of assignment with the risk of paying the wrong (previous) creditor and having to make another payment to the assignee.

However, if no assignment exclusion has been agreed, the third party debtor must pay the assignee in the case of an open assignment. In the case of silent assignment, he may continue to pay to the assignor. However, if the third-party debtor pays the assignor despite an open assignment, the assignee has a claim for compensation under Section 816 (2) of the German Civil Code (performance to the unauthorized person) against the assignor. However, if it is an assignment by way of security , the assignee has only one claim against the assignor in his insolvency ( Section 50 InsO ). Both claims have different effects in bankruptcy. While the claim for compensation from § 816 (2) BGB leads to the segregation of the claim from the insolvency estate and complete transfer to the assignee, the separate claim falls into the mass. In the latter case, the assignee is only entitled to proportional satisfaction.

Prohibition of assignment for third party rights

A further ban on assignment can also apply if the assignment affects the rights of third parties (e.g. assignment of pecuniary claims of a doctor against his private patients), if this means that sensitive information is passed on. The prohibition of assignment follows from § 134 BGB i. V. m. § 201 ff. StGB or Art. 2 Paragraph 1 i. V. m. Art. 1 para. 1 GG as a violation of private secrets (or as a violation of general personal rights ).


  • Wagner, Eberhard: Contractual assignment prohibitions in the system of civil law obstacles to disposal . Tübingen 1994. ISBN 3-16-146209-2 .
  • Lodigkeit, Klaus: The development of the ban on assignment of claims up to § 354 a HGB . Münster 2004. ISBN 3-8258-7524-5 .
  • Nefzger, Alexander: Contractual assignment prohibitions . Berlin 2013. ISBN 978-3-428-13969-9 .

See also

Individual evidence

  1. ^ BGH WM 1991, 693.
  2. BGH NJW 1997, 3434