Recourse (law)

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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 :

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 ).
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 .
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.

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

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