Assumption of debt
The assumption of debt in the law of obligations is the contractual transfer of a debt from one debtor to a new debtor.
General
A debt does not have to until they meet at the same debtor remain, but can change the debtor. The debt is thus a transferable legal object . Even the obligee of a debt can switch by way of assignment . The assumption of debt is the opposite of assignment, because with it the debtor - not the creditor - changes, the debt - not the claim - passes. While the assignment of the debtor does not require the participation of the debtor, the assumption of a debt by another debtor always requires the participation of the obligee. The need to replace the debtor from an existing debt relationship arises in particular when objects are sold that gave rise to the debt and are to be paid by the purchaser in the future. For example, one with loans funded and therefore with mortgages contaminated property is sold, the buyer may in land purchase contract on these mortgages together with debt drawn down taking into account purchase price accept.
species
There are two types of debt assumption:
- In the exempting (privative) assumption of debt , the old debtor is eliminated (he is released from his debt), and the new debtor takes his place with all previous rights and obligations of the old debtor.
- In the case of the cumulative assumption of debt ( assumption of debt or assumption of debt), the old debtor remains obliged, the new debtor enters into the debt relationship as a further debtor; the debtor liable its creditors as joint debtors . It is not regulated by law, but permitted as a voluntary joint and several debt partnership in accordance with Section 311 (1) BGB .
Only the exempting assumption of debt is regulated by law; in this form it is a disposition . Therefore, according to the prevailing opinion, the exempting assumption of guilt can be closed informally and thus also implicitly .
Legal issues
The assumption of guilt is an intercession because one legal entity is liable for the guilt of another legal entity . If the debtor transfers his obligation to another legal entity before the due date , this assumption of debt must be agreed between the creditor and the new debtor in accordance with Section 414 BGB. Because the obligee is involved in the contract , the assumption of debt does not require his consent. However, if the assumption of debt takes place between the new debtor and the old debtor, the obligee must approve this ( Section 415 (1) BGB). This gives the creditor the opportunity to reject a less solvent new debtor because the debtor's creditworthiness is of crucial importance. The assumption of a mortgage debt ( § 416 BGB), which plays a role in the property purchase agreement, is particularly regulated .
The assumption of debt does not change the content of the debt ( Section 417 Paragraph 1 BGB), however, in accordance with Section 418 Paragraph 1 BGB, the ancillary credit securities ( guarantee and lien ) provided for the debt expire with the assumption of debt . The - likewise accessory - mortgage, on the other hand, does not expire, it becomes the owner's mortgage . The provision of § 418 BGB is not only applicable to the mortgage, but also to the - non-accessory - security land charge. The new debtor is entitled to the same objections that the previous debtor was able to raise against the obligee ( Section 417 (1) sentence 1 BGB).
As a legal consequence of the exempting assumption of debt, the new debtor takes on the legal position of the old debtor. The latter is no longer involved in the debt relationship; the new debtor exercises this legal position in his place. With the cumulative assumption of debt, joint and several liability arises between the debtors vis-à-vis their joint creditor in accordance with Section 421 of the German Civil Code (BGB), so that their creditor can demand payment of the debt from each individual debtor or from all debtors jointly.
According to § 415 BGB, the debtor and the transferee can also agree to assume the debt. In this case, the creditor must agree. The prevailing opinion assumes that the debtor and the transferee dispose of the claim of the obligee as unauthorized persons and the obligee this disposition i. S. d. Section 185 (2) BGB approved. Another opinion available in the literature assumes that a contract analogous to § 414 BGB is concluded between the obligee and the transferee , so that the transfer agreement between the debtor and transferee according to § 415 BGB ultimately only represents the cause and the notification to the creditors pursuant to § 415 para. 1 sentence 2 BGB an offer . With regard to the legal consequences, the two opinions differ in particular in that the latter has an ex nunc effect and a formal requirement for approval, whereas the former would have an ex tunc effect and freedom of form.
International
In the Austrian law of obligations , the assumption of debt in §§ 1405 ff. ABGB is regulated similarly as in Germany. Anyone who declares a debtor to assume his debt (assumption of debt) takes his place as debtor if the obligee agrees (§ 1405 ABGB). Anyone who promises a debtor to effect the performance of his / her creditor is liable to the debtor from the assumption of performance in accordance with § 1404 ABGB that the obligee does not claim against him. The surety is only further liable if he has consented to the change of debtor (Section 1407 (2) ABGB). In Switzerland, Articles 175–183 OR regulate the assumption of debt. The releasing assumption of debt requires a contract between the new debtor and creditor in accordance with Art. 176 OR, ancillary rights to the debt remain in place and guarantors continue to be liable after their consent (Art. 178 OR). The ineffectiveness of the contract revives the original contractual relationship (Art. 180 OR).
literature
- Tobias Maurer: assumption of debt: French, English and German law from a European perspective , University of Regensburg, dissertation, 2008/09 Mohr Siebeck, Tübingen 2010, ISBN 978-3-16-150115-9 .
- Knut Wolfgang Nörr , Robert Scheyhing , Wolfgang Pöggeler: Successions: Claims assignment , contract transfer , debt transfer , Mohr Siebeck, Tübingen 1999, ISBN 3-16-145954-7 .
- Staudinger Commentary on the Civil Code with Introductory Act and subsidiary laws. Book 2, Law of Obligations, §§ 397-432 BGB: Remission, assignment, assumption of debt, majority of debtors and creditors , author: Julius von Staudinger ; Jan Busche; Dirk Looschelders ; Volker Rieble ; Editor: Manfred Löwisch , Sellier-de Gruyter, [2017], ISBN 978-3-8059-1228-0 .
See also
Web links
Individual evidence
- ↑ Eugen Klunzinger, BGB: Schuldrecht , 1993, p. 45
- ↑ Peter Schlechtriem / Martin Schmidt-Kessel, Law of Obligations: General Part , 2005, p. 365
- ↑ Karl Mugele, Contract Law , 1961, pages 71 et seq.
- ↑ Peter Bydlinski, Munich Commentary on the BGB , Volume 2, 6th edition, 2012, § 414 Rn. 6th
- ↑ Otto Palandt / Christian Grüneberg, BGB Commentary , 73rd edition, 2014, overview before Section 414, marginal no. 1
- ^ Alpmann Brockhaus, Fachlexikon Recht , 2005, p. 1167
- ↑ Otto Palandt / Christian Grüneberg, BGB Commentary , 73rd edition, 2014, § 418, Rn. 1
