Legal predecessor

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Predecessor is a legal concept by which an entity is known that prior to transfer to another entity holder of certain rights was. The counterpart is the legal successor .

General

Legal subjects as legal predecessors can be both natural and legal persons . The rights do not always have to remain with them, but can be transferred to other legal entities at any time, provided that transferability is permitted. Then the legal predecessor always has a legal successor. However, highly personal rights cannot be transferred. When transferring from the legal predecessor to the legal successor, the legal principle applies that the predecessor cannot transfer more rights to the successor than he is entitled to ( Latin: Nemo plus iuris transferre potest quam ipse habet ). The successor therefore always takes the place of the legal predecessor.

According to Tertullian , the apostle, and after him every bishop, is the legal predecessor ( Latin auctor ) for his successor in office and, as a legitimate link in the chain of pure faith tradition , gives him a guarantee ( Latin auctoritas ) that the charism will continue to work . The legal successor ( Latin successor ) takes over the legal succession ( Latin successio ), for example as heir in the universal succession , whereby the legal predecessor is called the testator .

Legal issues

The original acquisition of ownership is not derived from the will of a legal predecessor, but is based directly on law such as connection (§ 946 ff. BGB ), mixing ( § 948 BGB), processing ( § 950 BGB), fruit acquisition ( § 953 BGB), appropriation of the ownerless Property ( § 958 Paragraph 1 BGB) and the acquisition of property by the finder ( § 973 Paragraph 1 BGB). In the case of derivative acquisitions that occur more frequently , however, the authorized seller is the legal predecessor, as is the case with the transfer of ownership of movable property (§ § 929 ff. BGB) or land and rights equivalent to real property (§ § 873 , § 925 BGB) and inheritance (§ § 1922 ff. BGB) ); their ownership is derived from their legal predecessor.

Areas of law

The main areas of law that deal with the legal predecessor are civil, labor, corporate and residential property law.

  • Civil law :
    • In the law of obligations, rights are transferred through a legal transaction . The acquirer acquires the right because the transferor owned the right and wanted to transfer the right; this operation represents a succession. The most important transaction here is the assignment of claims (§ § 398 ff. BGB), in which the predecessor assignor and its successor assignee be mentioned. With the assignment, the assignor loses all rights and obligations in relation to the claim and transfers them to his legal successor. The sale of a rented apartment by the landlord as a legal predecessor to an acquirer is also important. If the rented living space is sold by the landlord to a third party, the purchaser, as legal successor, replaces the landlord with the rights and obligations arising from the lease for the duration of his property ( Section 566 (1) BGB; “Purchase does not break Rental fee"). If the legal successor does not fulfill his obligations, the legal predecessor is liable for this as a surety (Section 566 (2) BGB).
    • This is different with the acquisition of property under property law , because the owner must establish real relationships with the thing. However, the BGB speaks of a "legal succession in possession" (§ § 198 BGB, § 943 BGB) or the "legal successor" or "legal predecessor" of the owner (§ § 861 Paragraph 2, § 943 BGB, § 949 BGB) ; What is meant is an acquisition of ownership with the will of the previous owner. If a thing for which there is a real claim comes into the possession of a third party through legal succession, the legal successor will benefit from the limitation period that has passed during the possession of the legal predecessor ( Section 198 BGB). Where the matter by succession in the individually owned a third party, is the elapsed during the tenure of the assignor Ersitzungszeit the third party benefits ( § 943 BGB). The possession obtained through prohibited self-power is flawed. The legal successor in possession must accept this defectiveness against himself if he is the heir of the owner or knows the defectiveness of the possession of his legal predecessor at the time of acquisition ( Section 858 (2) BGB).
  • Labor law : If a company or a part of it is transferred to a legal successor through a legal transaction (transfer of business , company acquisition ), the latter enters into the rights and obligations from the employment relationships of the legal predecessor existing at the time of the transfer in accordance with Section 613a BGB . Rights and obligations under labor law arising from a collective agreement or a works agreement become the content of the employment relationship between the new owner and his employees . In addition, they may not be changed to the detriment of the employees in the first year after acquiring the company. According to Article 3 of Directive (EU) 2001/23 / EC, this also applies in all EU member states , because in the event of a company or business transfer to the purchaser, all of the agreements between the seller (legal predecessor) and the employee are individually agreed in the employment contract Working conditions unchanged, as if he had agreed them with the employee in an individual contract. In response to a submission by the Federal Labor Court (BAG), the ECJ ruled on April 27, 2017 that Art. 3 of Directive (EU) 2001/23 / EC in conjunction with Art. 16 GRC of the dynamic continued application of an employment contract reference clause in the relationship between does not conflict with the employee and the business purchaser, provided that national law provides for both amicable and unilateral adjustment options for the subsequent purchaser. The German legal system provides for such both amicable and unilateral adjustment options. This also applies if the company acquirer is not bound by the collective bargaining agreement through membership in a collective bargaining coalition and therefore cannot influence future collective bargaining .
  • Company law : In the event of the exclusion of a partner who has not paid his capital contribution , his legal predecessor is liable in accordance with Section 22 GmbHG . There is only a legal predecessor if the business share was transferred by way of assignment . If payment of the outstanding amount cannot be obtained from legal predecessors, the company can sell the share in accordance with Section 23 GmbHG by means of a public auction .
  • In the case of condominium law , the administrator does not have to make a pro-rata settlement between the legal predecessor and legal successor in the event of a change of ownership , because a payment obligation arises for those who are entered as the owner in the apartment or partial ownership land register at the time the resolution is passed. If the apartment owners are only obliged internally by the resolution of the apartment owners association, it also follows that such a resolution can only establish liabilities for the apartment owners appointed to pass a resolution, but not for their legal predecessors; otherwise there would be a - inadmissible - overall act at the expense of third parties. Conversely, the obligation of the current apartment owners is justified at the time of the resolution from Section 16 (2) WEG .
  • In the check and bill of exchange law , the endorsement transfers all rights from the check or bill of exchange ( Art. 17 para. 1 SchG , Art. 14 para. 1 WG ). The endorser (predecessor) adhere at the endorsement together with the endorsees (successor) for cashing the check, or change ( Art. 18 , para. 1 SchG, Art. 15 , para. 1 WG).

The list contains only the most important examples of legal predecessors.

International

The German regulations of the legal predecessor ( English legal predecessor , French prédécesseur en droit ) also apply largely internationally due to the legal principle.

Individual evidence

  1. ↑ Ulpian , Digesten , 50, 17, 54
  2. ↑ S. Calvary-Verlag (Ed.), Annual Report on the Progress of Classical Classical Studies , Volumes 279–280, 1942, p. 341
  3. ↑ Volker Jänich, Intellectual Property , 2002, p. 255 f.
  4. ^ Harm Peter Westermann / Dieter Eickmann / Karl-Heinz Gursky, Property Law , 2011, p. 108
  5. ^ Harm Peter Westermann / Dieter Eickmann / Karl-Heinz Gursky, Property Law , 2011, p. 108
  6. ↑ BAG, decision of June 17, 2015, Az .: 4 AZR 61/14 (A)
  7. ↑ ECJ, judgment of April 27, 2017, Az .: C-680/15 and C-681/15 - Asklepios Kliniken Langen-Seligenstadt = NJW 2017, 2178
  8. ↑ BAG, judgment of August 30, 2017, Az .: 4 AZR 61/14
  9. ↑ Walter Hilber / Karl Vogel / Meike Schöler, Das GmbH-Gesetz , 1987, p. 100
  10. ^ BGH, decision of April 21, 1988, Az .: V ZB 10/87 = NJW 1988, 1910 , 1911
  11. ↑ BGH, decision of April 21, 1988, Az .: V ZB 10/87