Pledge (right)
In lien , a pledge is understood to be legal objects that are made available to the obligee as security for his claim .
General
The pledge is the sole legal object in the lien. The parties involved are the pledgee ( security buyer ), the borrower ( security seller ) or a third, non-borrowing security seller. In particular, the lien provides that the pledgee only gains possession of the pledged object, while the debtor or a third pledgee retains ownership of it . When the pledge becomes mature , the pledgee has the legal right to use the pledge even as the mere owner if the secured claim is due and has not been paid in whole or in part. In the case of tangible items, both movable items ( precious metals , jewelry ; bargaining deposit ) and immovable items such as real estate and rights equivalent to real estate ( real estate liens ) can be considered as pledged objects . Even intangibles such demands , concessions , licenses , patents , trademarks , trademarks , intellectual property rights , goodwill and copyrights can serve as collateral, unless they are to the highly personal rights belong.
history
Roman Empire
The Roman Twelve Tables Law from 451 BC. Chr. Allowed the pledge as a property pledge. In the 2nd century BC It appeared in Catonic business forms. From the fist ( Latin pugnus ) the word for pledge ( Latin pignus ) was derived in Roman law . The creditor had to hold the pledge in his hands and was given the role of owner. It was entirely at the risk of the creditor whether he would achieve additional proceeds (in Latin superfluum ) or retained a shortfall in proceeds with a residual claim (in Latin reliquum ). He did not have to surrender the additional proceeds to his debtor, he was left with the remaining claim.
From the Roman eastern provinces, under Emperor Julian (360–363 AD ), the non-possessory lien came from Greece to Italy ( Latin hypotheca ). Ulpian severing it clear between the property lien ( Latin pignus ) and the non-possessory pledge ( Latin hypotheca ). The pledged object ( Latin corpus ) was liable for a current or future claim, even changing inventories could be pledged. A sunset clause ( Latin lex commissoria ) ensured that the creditor of the pledge would acquire ownership as soon as the debtor did not repay his loan ( Latin mutuum ) on the due date . Later, a sales agreement ( Latin pactum de vendendo ) attributed any additional proceeds to the debtor. From the beginning, the Romans linked the pledge order to the close relationship between pledge and claim, which has been preserved as an accessory to this day.
middle Ages
Fahrnis (deposit item)
The acceptance of a driving deposit was already legally regulated in the early Middle Ages . A creditor could take a pledge from the debtor to protect his claim. In the Carolingian era , this could only be done with the permission of the judge. In the end, only the count , and later other agents of the king or sovereign, were allowed to seize the property. In the cities, officials specially appointed to take the pledge, the so-called pledges, were appointed. Only these were allowed to carry out the attachment. In practice, however, unauthorized movable objects were still taken as deposit. On the other hand, attempts were made to intervene in the country peace since the 13th century .
Land charge
As a pledge was in the Middle Ages and in the early modern period , the mortgage referred. The subject of the pledge could not only be simple properties. Rather, entire dominions or (according to the modern understanding) sovereign rights , such as customs duties , could be pledged. Instead of interest on the underlying debt, the creditor was then entitled to the income from the pledge.
Territories
In the Middle Ages, it was common for sovereigns to lend places or entire lordships as pawns , in return for money borrowed. The pledged areas could be redeemed at any time by the original owner through monetary payments or other exchanges. Occasionally, the pledge was also converted into regular possession for the pledgee, with the consent of the original owner or in the event of his permanent insolvency.
Examples
- Dobrilugk lien , lordship granted by the Bohemian king in 1547, which was redeemed in 1602.
- Wismar , Amt Neukloster and the island of Poel were given by Sweden to Mecklenburg as pledged property in 1803 and officially transferred to it in 1903
Modern times
The Prussian "Mortgage and Concurs Order of February 4, 1722" already adopted the Roman bargaining principle. The term lien first appeared in Johann Leonhard Frisch's dictionary in 1741 . The Codex Maximilianeus Bavaricus Civilis of January 1756 speaks of the " pledge " as well as the General Prussian Land Law (APL) of June 1794, which declared the pledge as "the right in rem that has been granted to someone on a foreign thing for the security of his claim , and by virtue of which he can demand his satisfaction himself from the substance of the matter ”(I 20, § 1 APL).
The BGB , which came into force in January 1900 , largely adopted the provisions on pledges from Roman law.
etymology
The origin of the word “deposit” is controversial. According to one doctrine, the pledge is a word taken from the old French (back) from Frisian , which is said to go back to the old French term “paner”, which can mean both “ take away ” and “ wipe away ”. In the former case it would have originated from the (Germanic) Franconian word " Bann " (Pfan d : das [Ge] bann t [e] , ie with a ban), in the latter from the Latin "pannus" ("Lappen") (“Torn away scrap”) [The origin and purpose of the dental ( -d ) would then be unclear]. In any case, the derivation makes it clear how clothes and fabrics were considered a means of payment in times of predominant barter . Another doctrine is based on the assumption that an intermediate level “pa n ctum”, developed from “ pactum ”, must be applied. Ernst Wasserzieher / Betz also refer to the proximity to the word "pfennig", which, however, u. U. rather comes from the word "pan". Friedrich Kluge assumed the German word origin of the pledge from equilibrium ( Latin pondus ), because the Old High German “pfant” described a counterweight (to debt).
Legal issues
The right of lien on movable property or rights is regulated in Germany in §§ 1204–1296 BGB. Special regulations can be found in the Law on Lease Loans and the Law on Securing the Supply of Fertilizers and Seeds . For ships and aircraft, the Ship Law Act and the Air Vehicle Law Act apply .
The pledge can arise through a contractual agreement ( pledging ) as well as by virtue of the law ( statutory right of lien and lien ). However, a pledge is of secondary importance as a security item in commercial transactions. There is more of the collateral assignment (for example, the transfer of ownership of motor vehicles ) or liens ( mortgages , land charges or mortgages ) made use. However , the deposit is used more frequently in everyday business .
The contractual lien on objects regularly arises from a real legal transaction , the order of the lien, which is regulated for movable objects in § 1205 BGB. The security agreement under the law of obligations must be distinguished from the creation of a lien , in which it is agreed that a lien on a certain item is to be created to secure a certain claim. For example, it is included in the loan agreement . In addition, a lien can also arise by law. Examples are the landlord's lien ( Section 562 BGB), the innkeeper lien ( Section 704 BGB) or the creation of a lien through surrogation , for example in the case of Section 1219 (2) BGB.
Pursuant to Section 1215 of the German Civil Code, the pledgee is obliged to keep the pledge so that he or she bears a complete storage risk . He bears this duty of safekeeping until the deposit is returned. If the secured claim is not settled, the claim will be eligible for a pledge and the creditor can realize the pledge and offset the proceeds against the underlying claim. A judicial title is not required for this. The utilization takes place after a previous threat ( § 1234 BGB) by pledge sale ( § 1228 BGB), usually by public auction.
The deposit is strictly ancillary to the claim . If the claim expires, the lien automatically expires. The deposit must then be returned to the owner. But even if the pledged item is acquired unencumbered or if an agreed condition subsequent occurs, the pledge expires.
Deposit in financial transactions
In financial contracts and in particular in stock exchange trading , a certain deposit must be deposited in order to be able to conduct a transaction. This is called Margin referred to and determined by the risk of market participants and transactions carried out commercial transactions . Examples are options or futures .
No deposit
Objects that cannot be seized are not subject to the lien ( § 811 ZPO ). The bottle deposit is not a deposit on the bottle, but only a right of return against payment of the surcharge paid as a "deposit" , which the Federal Court of Justice (BGH) describes as a loan-like loan-to- use deposit for individualized bottles . Rather, the imprint "deposit" on a beverage bottle expresses an offer to everyone to take back the bottle against payment of the deposit amount. The identity card must according to § 1 para. 1 PAuswG neither deposited still be used as a deposit.
See also
Individual evidence
- ↑ Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary , 2010, p. 421
- ^ Jan Dirk Harke, Third Party Involvement in the Obligation , 2010, p. 144
- ↑ Heinrich Honsell, Roman Law , 2015, p. 78
- ^ Herbert Hausmaninger / Walter Selb, Römisches Privatrecht , 2001, p. 181
- ↑ Ulpian, Digesten , 13, 7, 9, 2
- ↑ Ulpian, Digesten, 20, 1, 34pr.
- ^ Paul Jörs / Wolfgang Kunkel / Leopold Wenger, Römisches Privatrecht , 1949, p. 154
- ^ Johann Leonhard Frisch, German-Latin dictionary , Vol. 2, 1741, p. 48
- ↑ General Land Law for the Prussian States, Volume 1, 1794, p. 850
- ↑ a b Woerterbuchnetz.de ; Retrieved July 9, 2012
- ↑ Ernst Wasserzieher / Werner Betz, Where from? Deriving dictionary of the German language , 18th edition, Bonn 1974, p. 330 f.
- ^ Friedrich Kluge, Etymological Dictionary of the German Language , 1989, p. 539
- ^ BGH, judgment of July 9, 2007, Az .: II ZR 233/05
- ↑ BGH NJW 2007, 2912
