Recourse (law)

The recourse ( Latin regress , "return") is in civil law the statutory recourse to a power committed debtor against a third party , which the debtor against this liability .

General

The word recourse is not a legal term ; the laws mostly speak of recourse . Recourse is an obligation between at least three parties. The obligee may demand something from the debtor under contract or law . If the debtor pays, he can in turn demand what he has done from a third party; he can hold himself harmless from the third party. The debtor's claim against the third party is called recourse . In essence, this is usually a claim for damages . The purpose of the law is, on the one hand, that the debtor can protect his assets and, on the other hand, the third party should ultimately bear the financial burden alone.

Regress techniques

German civil law knows three different recourse techniques:

• The most common case is the legal subrogation ( legal session , Latin cessio legis ). The claim against the third party is not lost due to the performance, but is automatically transferred from the satisfied creditor to the service provider. With the transfer of the claim, he also acquires all means of security for the claim, but must allow the expiry of the limitation period to apply against him.
• The less common way is to create a new claim by the supplier against the third party. Such a regulation can be found, for example, in Section 426 (1) BGB for joint and several debtors, in which the law combines both recourse techniques. In this way, security funds are not transferred, but the statute of limitations only begins with the emergence of the right of recourse.
• If there is no special legal regulation, recourse can be made via the enrichment right .

The purpose of these recourse techniques is to serve the debtor as a basis for claiming indemnification from the third party.

Recourse options in various areas of law

In particular, there are recourse claims in the following areas of law :

• Labor law :
  • The employee liability for operational purposes lasster activity is all the more limited because the worker self-determined work is performed and does not affect the organization has the operation, because the employer bears the organizational responsibility , and it therefore may arrives contributory negligence ( § 254 BGB ). The employer can only take recourse to the employee if the employer has to bear damage that was caused by the employee through gross negligence or intent ( Section 823 (1) BGB). A sharing of the damage is possible in the case of "moderate negligence".
  • The trade association than harm carrier of industrial accidents may have recourse when employers or employees have caused the accident at intent or gross negligence ( § 110 Abs. 1 SGB VII ).
  • If a worker through the disability caused a loss of earnings and may by law from a third party for this compensation this claim request, so goes according to § 6 1 para. EtGFG extent to the employer, as this the employee under this Act wages continue to be paid has.
• Civil service law :
  • In the context of state liability , the employer can be entitled to recourse against an official if he has committed a breach of official duty ( Section 839 (1) BGB). Here too, personal liability in the event of willful intent or gross negligence ( Section 75 (1) BBG ) is what is known as civil servant liability .
  • According to § 102 BBG, civil servants who, at the instigation of their superiors, have carried out an activity in a body of a company and are held liable for this, are entitled to compensation from the employer for the damage they have suffered.
• Civil law :
  • Anyone who has to pay compensation for the loss of an item or a right is only obliged to pay compensation in accordance with Section 255 of the German Civil Code (BGB) against the assignment of claims to which the person entitled to compensation is entitled based on the ownership of the item or on the basis of the right against third parties. This typical standard of recourse grants the person liable for damages due to the loss of an item or a right against the claimant for the contractual assignment of the claims to which he is entitled against another debtor.
  • When purchasing consumer goods , the warranty in favor of the consumer must neither be restricted nor excluded. The selling to the consumer entrepreneurs (such as retailers ) must therefore be the last of a sales or supply chain for defects then answer themselves when they do not represent has. He may then take recourse to his sub-supplier ( Section 478 (2) BGB). An entrepreneur who has given a consumer a guarantee can, even if his own guarantee has already expired , claim against his upstream supplier in the sales chain. The right of recourse must be asserted within two months of fulfilling your own warranty; it applies within the entire sales chain to the respective upstream supplier. For each link in the chain, there is an absolute limitation period for this recourse obligation of five years from the provision of one's own service.
  • Intercessions :
    • Guarantee : The guarantee case is the demand of the creditor by legal subrogation pursuant to § 774 . 1 BGB automatically Abs on the guarantor on, then the surety that by collection of this demand the principal debtor can hold harmless. The pre-bailiff against the subsequent bailiff and the back bailiff against the main guarantor have the same right .
    • The total debtor , if the creditor has obtained the overall performance of a debtor, in relation to each other in equal proportions to compensate bound ( § 426 , para. 1 BGB), wherein as the guarantee a subrogation takes place (§ 426, para. 2 BGB) .
    • If the creditor claims against the guarantor for the guarantee, he is entitled to reimbursement of expenses under § 670 , § 675 Paragraph 1 BGB against his client .
• Corporate law :

Is from the personal assets of the general partner to contribute to the eradication made the company debt of about after the social contract a proportionate recourse which goes from him to bearing loss percentage, the provisions of shareholders (among themselves instead of § 110 1 par. HGB ).

• Commercial law :

Pursuant to Section 414 (1) of the German Commercial Code (HGB), the sender must compensate the carrier for any damage resulting from inadequate packaging or labeling or failure to provide information about the dangerousness of the freight , regardless of fault .

• Social law :

If a service provider has provided social benefits because an employer does not meet the employee's entitlement to remuneration, the employee's claim against the employer is transferred to the service provider in accordance with Section 116 (1) SGB ​​X up to the amount of the social benefits provided. According to Section 117 (1) SGB X, this also applies to claims for damages.

• Insurance Law : Comprehensive recourse have insurance to their policy holders or third parties. When settling claims , insurance companies always check whether they can take recourse against the perpetrator or the policyholder. If the policyholder is entitled to a claim for compensation against a third party in the damage insurance , this claim is automatically transferred to the insurer in accordance with Section 86 (1) VVG , provided that the insurer reimburses the damage ( congruence ). This legal session occurs in the event of an insurance claim and does not have to be specially agreed. In addition to property insurance , this also applies to liability or legal protection insurance , but also to personal insurance , insofar as it provides damage benefits. In the personal insurance operated as a sum insurance , however, § 86 VVG does not apply. Even if the insurer is released from the obligation to perform towards the policyholder (e.g. due to a breach of obligations ), his obligation towards the third party remains in accordance with Section 117 (1) VVG.

Liability insurance against the policyholder is entitled to a further right of recourse if the latter has caused damage through gross negligence or even willfully. In private health insurance , Section 86 VVG is expanded by Section 194, Paragraph 2 VVG, in which claims for reimbursement due to charges paid without good reason are also transferred to the insurer.

If, on the accident insurance , brought individuals whose adhesion is limited according to §§ 104 to 107 SGB VII the insured event intentionally or through negligence, so they adhere to the social security institutions only up to the height of the civil claim for compensation in accordance with § 110 , para. 1 SGB VII for the expenses incurred as a result of the insured event.

If the export credit insurance pays in the event of an insurance claim, the exporter must assign his export claim to the export credit insurance so that the latter can try to keep the importer harmless for the insurance compensation paid . The contractual right to repayment of the export credit is not a claim for damages that is automatically transferred to the export credit insurance.

• Right of bills of exchange : According to Art. 43 WG , the holder of a bill of exchange has recourse against the endorsers , the issuer and the other persons obliged to make a bill when the bill is due if the bill has not been paid.

consequences

The right of recourse gives the debtor the opportunity to compensate for the decrease in assets (or increase in debt) that has occurred by trying to enforce this recourse against a third party. This will often fail because the third party is not solvent, for example because the creditor has already unsuccessfully asked the creditor to pay when the guarantee was issued.

International

The German recourse rules are similar in Switzerland and Austria . In Switzerland, real solidarity is regulated in Art. 50 OR and Art. 148 Para. 1 OR; Art. 51 Para. 2 OR applies to spurious solidarity . According to the latter provision, primarily the person liable for negligence , in the second line the person liable under the contract and finally the person who is causally liable has to bear the damage ("recourse cascade"). Art. 50 OR regulates the liability in the event of unlawful acts by several perpetrators, whereby the courts of recourse are to be determined. In private insurance law, there is a legal session for claims settlement by the insurer in accordance with Art. 72, Paragraph 1 of the Insurance Contract Act (VVG), which is called subrogation there . According to the regulation in Art. 533 OR, the ordinary partners bear the burden, unless otherwise agreed, according to the shares of the profit and loss participation. In the absence of other agreements, heirs bear the debts of the deceased according to Art. 640 Para. 3 ZGB in proportion to their inheritance shares.

If an entrepreneur has given a consumer a guarantee in Austria , he can demand the guarantee from his foreman, even after the deadline of § 933 ABGB has expired (§ 933b ABGB). The Supreme Court (OGH) has ruled that in the event of a transfer of business due to a change of tenant, the new tenant has a legal right of recourse against the old tenant if he meets the claims of employees who have been taken over upon termination of the employment relationship . If the new tenant has fulfilled all of the employee's claims, he is entitled to a right of recourse against the old tenant for the claims arising up to the transfer of operations for a maximum of 5 years from the transfer of operations. The long-term care regress enables the federal states to have recourse to the private assets of the person concerned and their relatives for funded long-term care .

If the Republic of Austria has compensated an injured party for damage caused by space activity on the basis of international agreements such as the Convention on Liability for Damage to Space Objects, the Federal Government has a right of recourse against the operator (Section 11 of the Space Act ).

The UN sales law also regulates the CISG importer 's right of recourse against the CISG exporter in product liability cases . The right of recourse presupposes that the final seller is liable to his end customer, the consumer, due to a lack of conformity.

See also

• Recourse indicators

Individual evidence

1. ↑ Carl Creifelds : Creifelds Rechtswörtbuch , 2000, p. 1086
2. ↑ Katharina von Koppenfels-Spies, Die cessio legis , 2006, p. 147 ff.
3. ↑ Peter Bülow, Law of Credit Securities , 2017, p. 645
4. ↑ Wolfgang Voit, in: Horst Baumann / Roland Michael Beckmann / Katharina Johannsen / Ralf Johannsen (eds.) Großkommentar VVG, §§ 74-99 VVG , Volume 3, 2010, § 86 Rn. 7, p. 513
5. ↑ Dirk-Carsten Günther, Der Regress des Sachversicherers , 2008, p. 2
6. ^ Karl Sieg , in: BB 1997, 2066, 2067
7. ^ OGH, judgment of August 30, 2016, Az .: 6 Ob 136 / 16t
8. ↑ Jürgen Basedow (Ed.): Private Law in the International Arena , 2000, p. 438

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