Debt (private law)

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Blame the means of private law by a debtor against his creditor acquired obligation .

General

In private law, the "obligation to be with the concept of guilt performance " meant ( § 241 BGB ), ie an act , toleration or omission to fulfill an obligation. Under civil law, the word debt is not just the singular of debt , because the latter only includes money debts . Rather, the civil liability term is extensive and covers the whole fault and representation obligation . A fault in the sense of §§ 276 and 278 BGB ( intent and negligence on the part of the debtor and also of vicarious agents ) is the prerequisite for the occurrence of a debt. It is controversial whether the civil law and the criminal law concept of guilt have the same content.

history

In the institutions of the high-class lawyer Gaius , around 160 AD, there are also obligations ( Latin obligatio ) in the context of the regulation of the law of things ( Latin res ). As part of what was later called the institutional system , property law and law of obligations were regulated in a legal context. The contract ( Latin contractus ) was a culpable fact , whereby according to Gaius "every obligation from contract or from offense " arose. He differentiated the contractual obligations according to transfer of property and verbal or written promise of performance . The latter was for evidentiary purposes in the house book of the creditor entered . Obligations, like inheritance ( hereditas in Latin ) and usufruct ( usufructus in Latin ) were thus regarded as immaterial things ( res incorporales in Latin ).

According to the German dictionary of the Brothers Grimm , the word guilt comes from the Germanic word “skulan” for “shall”. Derived from this is the former West Germanic village schoolteacher who urged the members of a community to perform their duties. The German literature understood guilt and liability as coexisting, different roots of the obligation. The Germanic law separated guilt and liability; Fault is that strips Shall , liability, the acceptance of obligation in the event of non-performance . The old high German "skuld" from 765 stood for "debt". Ortolph Fuchsberger only translated the obligation in 1538 as "obligation". The legal entity bearing a debt or debts is called the debtor , whose debt can result from a contractual or statutory obligation .

According to Alois von Brinz , the German words duty , obligation and guilt should better express the "essence of the obligatio" in 1853 . In 1874 he took the view that the obligatio was not a claim or a debt, but a bond or liability of the debtor. The conceptual contrast between guilt and liability can also be traced back to Alois von Brinz in 1879. At that time the debtor's liability only extended to his property ; however, earlier he could also be held personally liable for unfulfilled guilt by debt bondage or the debt prison . This “culpability” was lifted in France as early as 1867, followed by Austria (1868), England (with the Debtors Act of 1869), Switzerland (1874) and Sweden (1879). The North German Confederation abolished them with the law of May 29, 1868.

The Austrian ABGB , which followed the Roman institutional system and came into force in January 1812, deals with the law of obligations in §§ 859 ff. ABGB. In Switzerland, the Code of Obligations came into force in January 1883 and retained the Roman legal designation with his name. The German Civil Code , which has been in force since January 1900, is entitled “Law of Obligations” in the second book, which regulates the entire law of obligations . The Civil Code mentions the legal concept of guilt, particularly in compositions such Bringschuld , indeterminate obligation , Holschuld , Schick debt , piece of debt , mortgage or annuities . Here, the BGB often means the monetary debt when the term debt is used (statutory interest rate of § 246 BGB, see also § 272 BGB).

Transferability

A debt does not have to remain with the same debtor until it is settled; it can change debtors. If the debtor transfers his obligation to another legal entity, this assumption of debt must be agreed between the obligee and the new debtor in accordance with § 414 BGB . A debt assumption between the new debtor and the old debtor is also possible if the creditor approves this ( Section 415 (1) BGB). The assumption of debt does not change the content of the debt ( § 417 Paragraph 1 BGB), however, in accordance with § 418 Paragraph 1 BGB, the ancillary credit securities ( guarantee , mortgage and lien ) provided for the claim expire with the assumption of debt .

In the case of the assignment of the claim, the debtor does not need to cooperate; rather, the contract between the assignor and the assignee is concluded ( Section 398 BGB).

Guilt and liability

Guilt and liability are legal terms with separate contents, which, however, usually appear together. According to legal dogma , guilt and liability form an organic unit, because the unfulfilled guilt develops into liability. Without liability, the failure to fulfill the debt would have no consequences. The content of the debt indicates the conditions under which the liability is realized ( non-performance ) or not applicable ( performance ). Every debt therefore automatically establishes the debtor's unlimited personal financial liability. There is no longer a mere personal liability of the debtor, for example in the form of a debt prison. The asset liability can express itself in the foreclosure through attachment of the attachable assets, which the creditor can pursue if his debtor cannot or does not want to fulfill.

There is a separation of guilt and liability in the cases of guilt without liability , liability without guilt and limited liability . Debt without liability includes, for example, the obligation in kind , which is based on a debt, but the debtor does not have to be liable for it, for example in the case of statute of limitations ( § 214 Paragraph 1 BGB) or gambling debts ( § 762 Paragraph 1 BGB). Liability without fault occurs when someone collateral as a guarantor appointed for the debts of another (as the guarantor ). One of the inheritance assets limited liability assumes the heritage of estate liabilities ( § 1975 BGB).

literature

Individual evidence

  1. ↑ Björn Burkhardt, Schuld: Rechtsliche Perspektiven , in: Hermes Andreas Kick / Wolfram Schmitt (Ed.), Debt: Processing, Coping, Solution, 2011, p. 57
  2. ↑ Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary , 2010, p. 169 f.
  3. ↑ See Hans Hermann Seiler : History and the present in civil law. Fundamentals of Property Law , Heymanns, Cologne 2005, ISBN = 978-3-452-25387-3, pp. 229-295 (230).
  4. ^ Gaius, Institutiones , 3, 88.
  5. ^ Gaius, Institutiones , 3, 89; 3, 182
  6. ↑ Susanne Hähnchen : Legal history: From Roman antiquity to modern times. , 5th edition 2016, ISBN 978-3-8114-9421-3 , p. 77.
  7. ^ Gaius, Institutiones , 2, 2.
  8. ↑ Jakob and Wilhelm Grimm, German Dictionary , Volume 15, 1838, Col. 1870
  9. ^ Paul Jörs / Wolfgang Kunkel / Leopold Wenger, Römisches Privatrecht , 1935, p. 61 FN 2
  10. ↑ Karl von Amira , Nordgermanisches Obligationenrecht , Volume I, 1882, pp. 22 ff. And 32 ff.
  11. ↑ Gerhard Köbler , Etymological Legal Dictionary , 1995, p. 360
  12. ↑ Ortolph Fuchsberger, Teutscher Jura regulae , 1538, p. LX
  13. ↑ Alois von Brinz, The Law of Obligations as Part of Today's Roman Law , in: Kritische Blätter civilist content No. 3, 1853, p. 9 f.
  14. ↑ Alois von Brinz, The concept of the obligatio , in: Grünhuts Zeitschrift 1, 1874, p. 11 ff.
  15. ↑ Alois von Brinz, Textbook of the Pandects , Volume II, 1879, p. 1 ff.
  16. ^ Paul Jörs / Wolfgang Kunkel / Leopold Wenger, Römisches Privatrecht , 1935, p. 61 FN 2
  17. ^ Otto von Gierke , Debt and Liability , 1910, p. 97 f.
  18. ↑ Holger Sutschet, Guarantee liability and fault liability in mutual contracts , 2006, p. 21 f.