Right of retention

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The right of retention ( Latin ius retentionis ) is a legal institution that is used in various forms in civil law and to a certain extent also in public law . It is a tool for asserting one's own rights by postponing the fulfillment of claims by a contracting party until it in turn fulfills its contractual obligations. Ultimately, it is an expression of the principle of good faith . It is considered to be contrary to good faith if one party is supposed to perform in a uniform legal relationship , although the other party is not prepared to fulfill its performance obligations.

Legal issues

In German law there are several legal forms of a right of retention. In addition, a right of retention can also be contractually agreed. The basic form of the right of retention is regulated in § 273 Paragraph 1 BGB .

The general right of retention according to Section 273 (1) BGB

applicability

Section 273 of the BGB applies to all types of obligations . Also on family law claims, insofar as this is compatible with their character (e.g. not in the case of maintenance claims). In public law, Section 273 of the German Civil Code (BGB) is applicable as long as there are no legal principles under public law.

requirements

The assertion of the retention in accordance with § 273 BGB requires that the debtor from the same legal relationship on which his obligation is based, an overdue claim against the creditor has. Then he can refuse the performance owed until the obligee in turn fulfills the counterclaim. However, the obligee can avert the exercise of the right of retention by providing security ( Section 273 (3) BGB).

example

The guest has given the hotelier a valuable ring to keep in the hotel safe. The hotelier can refuse to hand it over until the accrued accommodation costs have been paid ( innkeeper lien ).

The general right of retention according to Section 273 (1) BGB requires:

  1. Reciprocal claims ,
  2. Due date and legal validity of the debtor's counterclaim,
  3. Connectivity and
  4. no exclusion of the right of retention.
Mutuality of Claims

A right of retention presupposes that the holding back debtor is the creditor of the counterclaim and the creditor is the debtor of the counterclaim.

Due date and legal validity of the counterclaim

The debtor's counterclaim must be fully effective and enforceable. Conditional, future or imperfect claims are not enough.

Connexity (internally related, uniform living relationship)

It is necessary that both claims come from a uniform living relationship. "This term is ... to be interpreted broadly. It does not require that the opposing claims are based on the same legal relationship. Rather, it is sufficient if they are based on an internally coherent, unified living relationship, i.e. both if they have a contractual basis Legal transactions have emerged that are in such a natural and economic context that it would be contrary to good faith if one claim could be asserted and enforced without regard to the other side.

No exclusion of the right of retention

The right of retention can be excluded on the basis of a statutory regulation, the nature of the contractual relationship, in good faith or on the basis of an agreement.

  • Exclusion due to the nature of the obligation
For example, it is assumed that no right of retention can be exercised on passports or against a maintenance claim.
  • Exercising a right of retention can also violate good faith (§ 242 BGB).
Examples ( labor law )
"The exercise of the right of retention is subject to the principle of good faith according to § 242 BGB and is subject to the principle of proportionality. Accordingly, the employee must clearly and unambiguously inform the employer, stating the reason, that he will exercise this right with a view to a very specific, Realize specific counterclaims. This is the only way to give the employer the opportunity to examine the employee's possible claim and, if necessary, to fulfill it ".
"The principle of good faith forbids the employee to withhold his work because of a relatively low wage claim. This follows from an analogy to Section 320, Paragraph 2 of the German Civil Code (...). The exercise of the right of retention can also be illegal, if only a short-term delay in wage payment is to be expected ".
  • contractual exclusion
A contractual exclusion of the right of retention is also possible, but limited in the general terms and conditions by § 309 No. 2 BGB.

Legal consequences

dilatory objection

§ 273 BGB is applicable and have his conditions may - must not - make the debtor to the creditor a lien. This is a case of suspensive objection. The assertion should ideally be express, but can also be tacit, i.e. H. resulting from the circumstances.

The obligee's right to avert

The obligee can avert the right of retention according to § 273 Abs. 3 BGB by providing a security.

Debtor default

The exercise of the right of retention excludes the occurrence of a debtor's default. A debtor's default that has already occurred is only ended if the debtor offers his performance step by step in exchange for the consideration .

Statute of limitations

By exercising the right of retention, the statute of limitations is generally not inhibited.

Procedural matters

If the creditor sues his claim, the debtor must assert the right of retention as a dilatory objection . However, the objection does not lead to the action being dismissed, but only has the effect that the debtor is sentenced to performance step by step against receipt of the consideration ( § 274 BGB).

Special cases of the right of retention

Objection of the non-fulfilled mutual contract (§ 320 BGB)

As a more specific regulation, § 320 BGB takes precedence over the general right of retention according to § 273 BGB. This is a specially designed case of a right of retention ( prevailing opinion ) with partially different regulations. It only applies to a mutual contract, has no right of avoidance and does not have to be raised (explained). The assertion also leads to a train-by-train conviction ( Section 322 of the German Civil Code).

Retention of items and objects due to certain counterclaims (Section 273 (2) BGB)

A special case of the right of retention is regulated in Section 273 (2) BGB. It presupposes that the debtor has either made use of an object to be surrendered (which can also be a right) (such as feed costs for an approached dog) or that damage has been caused by the object to be surrendered (dog has torn pants), and the object must not have been obtained through an intentional tort (the dog was stolen).

A special case to Section 273 (2) BGB is the right of retention according to Section 1000 BGB (owner's right of retention), which, in contrast to the right of retention in Section 273 (2) BGB, does not require the counterclaim to become due.

Commercial law

Among merchants , there is the extended commercial right of retention to § 369 HGB in mutual trade transactions . It also enables satisfaction from the retained item ( Section 371 HGB).

Tenancy law

The landlord can exercise the landlord's lien on property brought into the rented premises within the framework of a rental agreement .

The landlord must send the tenant an invoice for the additional costs within 12 months of the end of the billing period . If he does not do this, the tenant can make use of his right of retention by suspending further advance payment of additional costs until the landlord has fulfilled his obligation.

Work contract

In the law on contracts for work and services , the customer of a work can withhold part of the remuneration with regard to possible work defects and the costs of their elimination .

Find

The finder has a right of retention vis-à-vis the recipient from § 972 BGB due to claims from § 970 , § 971 BGB.

Owner-owner relationship

The owner can refuse to surrender the item within the framework of an owner-owner relationship , provided that he has made substitute uses on the item ( Section 1000 BGB).

International

Austria

In Austrian law, a fundamental distinction can be made between a right of retention in the broader sense (in the broader sense) and a right of retention in the narrower sense (in the broader sense). The former also includes the move-by-move principle, according to which one contracting party may withhold its performance until the other does. In the narrower sense, however, the right of retention is understood to be the right to refuse the surrender of a third-party item to which z. B. expenses have been incurred . In the following, only the right of retention is dealt with in the narrower sense.

civil right

The owner of a thing is entitled to a right of retention in accordance with § 471 ABGB , who is sued by the owner for surrender if he has incurred an expense for the thing or has suffered damage from the thing ( connection between thing and claim, see inconnexity below) . Although he is not entitled to use it , he is entitled to refuse to hand it over until his claims have been satisfied.

Although the right of retention has similarities with a right in rem (property law), according to prevailing opinion it is not seen as such, since it lacks the real character. Some see it as a hybrid of an in rem and an obligatory right. The proximity to the right of lien , to which the right of retention in bankruptcy , settlement and international private law is equal, should also be noted here.

The right of retention is excluded in the case of arbitrarily or fraudulently withdrawn (e.g. theft , fraud ), borrowed ( loan ) and in safe custody ( safekeeping contract ) or taken into account (long-term contract: rent , lease ). The purchaser is entitled to a retention fee vis-à- vis a property developer .

Entrepreneurial right of retention

The entrepreneurial right of retention ( commercial law ) goes beyond this and also includes a right to satisfaction as with the lien . The owner has the following options:

  • Enforcement satisfaction: The owner sues and receives an enforcement title with the judgment, whereupon the thing is attached and sold.
  • Satisfaction: The owner sues and receives an enforceable title, whereupon he is entitled to realization himself according to the rules on the pledge sale .

An important difference to civil law with regard to the requirements for the right of retention is that there is no need for a connection, i.e. a connection between the thing and the claim. The claim does not have to be caused by damage / expense related to the thing, but can be any other monetary claim of the owner against the owner. Another difference to civil law is that the right of retention also applies to the acquisition of ownership through lending, custody and holding (rent, lease). Without the will of the debtor, however, the thing must not have come into the possession of the obligee, so that here, too, as in civil law, things that have been arbitrarily or cunningly confiscated may not be retained.

Included are movable property and securities (only bearer and registered form , no Rektapapiere ).

Switzerland

One form of a right of retention is the right of retention , which is regulated in property law in Articles 895–898 ( ZGB ). The right of retention is a statutory lien that is provided for certain types of contracts.

example

The lessor of business premises has a right of retention for the lapsed annual interest and the current half-yearly interest on the movable objects that are in the rented premises and belong to their furnishings or use. (Art. 268 OR ).

See also

Web links

Individual evidence

  1. ↑ BGH, judgment of July 3, 1991, Az .: VIII ZR 190/90 = BGHZ 115, 99-105, Rn. 13
  2. ↑ BAG, judgment of January 19, 2016, Az .: 2 AZR 449/15 -, Rn. 52, juris
  3. ↑ BAG, judgment of October 25, 1984, Az .: 2 AZR 417/83 -, Rn. 29, juris
  4. ↑ Reiner Schulze ( inter alia), Commentary BGB , 9th edition 2017, § 273 Rn. 18th
  5. ↑ Reiner Schulze ( inter alia), Commentary BGB , 9th edition 2017, § 273 Rn. 18th
  6. ↑ mietrecht.org: right of retention due to non-creation of the utility bill (and possible default in payment)