Name paper

from Wikipedia, the free encyclopedia

Registered papers (formerly recta papers ; from Latin recta (via) , `` on a straight path '' ; that is, the person obliged to pay directly) are securities made out in a specific name , the documented entitlement of which can be transferred through agreement, assignment and handover . The service should be made directly (recta) to the recipient named in the paper, which is why recta papers are not intended for circulation. The assignment requirement and the transfer, which is usually not directly provided for by law, are obstacles that considerably restrict the marketability of the recta papers.

General

With regard to this marketability, however, bearer papers are fully fungible because agreement and handover of the paper are sufficient to transfer the rights evidenced therein. The right or claim evidenced in the bearer paper is so closely linked to the bearer paper that the transfer of the paper is accompanied by a transfer of the claim evidenced therein. This is different with rectal papers. The claim evidenced in these securities is in any case made so independent that the mere handing over of the recta paper does not also lead to the transfer of the claim evidenced therein. From this the motto “The right to paper follows the right from paper” has developed.

species

The actual registered or recto papers include savings accounts , insurance certificates as well as mortgage , land charge and annuity notes. The term "limping bearer papers", which is often used for savings accounts and insurance certificates, is misleading because it is recta papers with a legitimation clause. They are also called qualified identification papers because they are documents that the debtor only has to pay to the holder. They indicate the name of the obligee, but are issued with the stipulation that the promised performance can be effected to any owner. Qualified identification papers are also the bearer symbols (also called "small" bearer papers or "qualified identification symbols") of § 807 BGB (see bearer papers).

Legal bases

In the case of recta papers, what matters is the law evidenced in them and not the paper itself, so that property law principles do not apply. Rather, the focus is on the claims evidenced in the papers or other rights that are to be transferred by way of assignment . The transfer therefore follows the principles of assignment under the law of obligations (§ § 398  ff., § 413 BGB). The meaning of the document is limited to the protection of the debtor, for whom there is an obligation to perform only against the handing over of the document and who can pay any holder with debt-discharging effect. The handover of the savings book or the insurance policy is neither necessary nor sufficient for the transfer to be legally effective.

This raises the question of how ownership of the document and the rights evidenced therein can be prevented from falling apart during the transfer. Because with the qualified identification papers (savings book, life insurance policy) the handing over of the certificate is not explicitly mentioned by law. The handover is only required by law for mortgage and land charge certificates ( Section 1154 (1) BGB). Only Section 952, Paragraph 2 of the German Civil Code (BGB) creates the identity required for legal certainty between the authorized creditor and the document holder for the other recta papers: the respective creditor is entitled to recta papers. The new creditor (assignee) of the documented claim thus has a right against the old creditor (assignor) to surrender the savings book or insurance policy ( Section 412 , Section 985 , Section 952 Paragraph 1 Clause 2 BGB). In addition, the previous obligee is obliged to hand over all documents to the new obligee according to § 402 BGB. For this reason, Section 952 of the German Civil Code ensures the necessary binding for dependent documents that cannot be transferred regardless of the claim embodied in them.

The legal nature of the papers falling under § 808 BGB is determined by their dual function: they are both legitimation papers, since the debtor can pay to any holder with discharging effect, and securities, since according to § 808 Para. 2 BGB the debtor only has to be handed over Document is obliged to perform.

From § 398 , § 952 BGB it follows that it is not possible to purchase Rektapaprices in good faith (exception: mortgage, land charge and pension note); the protection of good faith is not provided according to § 407 BGB. There is also no legal certificate for a material entitlement; the debtor does not have to pay to the owner, because the owner as such is not entitled to demand performance ( Section 808 (1) sentence 2 BGB). The material entitled person is therefore who can legitimize himself through a seamless chain of assignment, which must be traced back to the issuer of the certificate.

"Technical" registered papers

In addition to the actual registered securities, other types of securities can also take on the characteristics of registered securities. For all order papers , this can be achieved through the order clause and / or a special endorsement .

"Born" order papers

Since the (positive) order clause is required by law for “born” order papers, these can only be converted into registered papers via a recta endorsement . With the recta endorsement, the endorser wants to prevent the endorser from passing on the order paper that was born. If the latter still wants to pass on the order paper that was born, this can only be done with the help of an assignment. The change of recta can no longer be transferred by endorsement, but only by assignment ( Art. 11 Para. 2 WG ).

"Corrected" order papers

If the (positive) order clause is missing from the “selected” order papers, they are treated like registered papers and can therefore only be transferred with the help of the assignment. This also applies in the event of a negative order clause . If the positive order clause is provided on the awarded order papers, but one of the parties involved attached a recta endorsement during the transfer, the claims can only be transferred by assignment.

Assertion of the claim

Assertion of the claim from a recta paper means that the legitimate owner of the paper and the creditor of the claim documented therein can demand his claim to performance from the debtor against delivery of the document when the right documented therein falls due. The beneficiary named in the document is initially entitled to assert the claim. If the latter has transferred the claim by assigning the documented claim and handing over the paper to a third party, the latter is entitled to demand the documented performance from the debtor. The possession of the paper and a complete chain of assignments, which must be attributed to the issuer, justify the unreserved assumption of the material entitlement of the holder. The debtor may only raise the following objections to the holder:

  • Document objections : the debtor can object, for example, to the lack of due date of the performance from the content of the document;
  • Validity objections : of the instrument is debtor may be about the lack of capacity object of an assignee or the incompleteness of the Zessionskette;
  • Personal objections : the debtor declares the set-off with a counterclaim.

If the exhibitor's debt is not yet due, he does not have to pay the owner until the due date. In § 410 BGB, the debtor is granted a right to refuse performance as long as the assignee does not present a deed of assignment from the assignor (with the effect of § 409 (1) sentence 2 BGB) or the assignor has not notified the debtor of the assignment in writing (with the effect of Section 409 (1) sentence 1 BGB). In addition, Section 404 of the German Civil Code (BGB) guarantees the debtor all objections and defenses regardless of the knowledge of the assignee. According to this, the assignee has to accept that the debtor will refuse performance due to deferral because the assignor has kept this deferral from the assignee.

Loss of the rectal paper

If the document has been lost, however, the right enshrined in it is not lost. Necessary for the assertion of rights under lost registered securities is then a cancellation after completion array method . The exclusion judgment of the declaration of nullity replaces the lost rectal paper and gives the holder the original legal status ( § 479 FamFG ). The public notice procedure is provided for by law for rectal papers, for example in Section 1162 of the German Civil Code for mortgage letters; then the obligee can demand the issuance of a new land charge from the land registry according to § 67 , § 68 land register regulations .

If a Rektapapier lost (through theft or loss), the law can only be due to a (§§ in the squad method § 433  et seq. FamFG) erwirkten exclusion judgment pursuant to § 478 FamFG be asserted by the debtor. This is the consequence of the right of the debtor that he is only obliged to perform if the document is handed over to him by the owner.

Individual evidence

  1. ^ Peter Bülow: Law of the loan collateral. Movable property and rights, people. CF Müller juristischer Verlag, Heidelberg 1984, ISBN 3-8114-5584-2 , p. 53.
  2. ↑ Lutz Sedatis: Introduction to the Securities Law. de Gruyter, Berlin et al. 1988, ISBN 3-11-007582-2 , p. 52 ff.
  3. ↑ Stephan Meder , Andrea Czelk: Basic knowledge of property law (= UTB 2653 law ). 2nd, revised edition. Mohr Siebeck, Tübingen 2008, ISBN 978-3-16-149798-8 , p. 89.
  4. ^ Alfred Hueck (founder): Law of securities. Since the 11th edition, reworked by Claus-Wilhelm Canaris . 12th, revised edition. Vahlen, Munich 1986, ISBN 3-8006-1172-4 , p. 228.
  5. ^ Jan Wilhelm : Property Law. 3rd, completely revised edition. de Gruyter Recht, Berlin 2007, ISBN 978-3-89949-325-2 , p. 613.