Acknowledgment of guilt
The acknowledgment of debt (or promise of debt ) is in the law of obligations an acknowledgment by means of a contract by the debtor to his creditor , with which he confirms his guilt detached from the underlying causal transaction with an independent liability reason .
A debt relationship is generally characterized by the fact that the debtor has a debt obligation towards the obligee under the law or contract, which he has to fulfill . Any kind of performance from an obligation can be the subject of an acknowledgment of guilt or a promise of debt. By admitting debt, the debtor can confirm this debt relationship by creating an (abstract) legal reason for this debt that is detached from the original basic transaction through a unilaterally binding contract. This contract is also called the "abstract acknowledgment of debt".
The only legal basis for the acknowledgment of debt is § 781 BGB , according to which the contract recognizing the obligation must be drawn up in writing . If, however, a different form is prescribed for the establishment of the contractual obligation, the existence of which is to be recognized, the recognition contract also requires this form. This means that an orally concluded contract can only be confirmed in writing, but a certified contract only by certified acknowledgment of guilt. The promise of debt is regulated independently in § 780 BGB, both are unilaterally binding contracts in which the agreement of the contracting parties must extend to the establishment of an independent liability that is separate from the basic transaction .
The admission of guilt differs from the promise of guilt only in the linguistic version. For example, the acknowledgment of debt has the following content: "I acknowledge that I owe the creditor X Euro Y on the due date Z". A promise of debt reads: "I undertake to pay the obligee X Euro Y on the due date Z". If the original basic transaction is not mentioned at all, there is always an abstract acknowledgment of guilt.
The law regulates in § 781 BGB only the form of the abstract acknowledgment of guilt . The debtor's declaration of commitment must be made in writing. Only merchants can make this declaration in a form-free manner ( § 350 HGB ). What kind of acknowledgment is present, or whether there is any acknowledgment at all, must be clarified by interpreting the declaration or the contract. The court is neither bound by the wording nor by the fact that a unilateral declaration by the debtor is clad in a contract.
Abstract (constitutive) acknowledgment of guilt
The Reichsgericht (RG) made it clear as early as 1910 that not every acknowledgment, but only an acknowledgment of guilt within the meaning of Section 781 of the German Civil Code (BGB) constitutes an independent, private-law obligation. The abstract (constitutive) acknowledgment of debt regulated in Section 781 of the German Civil Code (BGB) establishes a new, abstract liability, i.e. a liability that is detached from the circumstances of the original transaction. If, for example, an abstract acknowledgment of debt is established for a purchase price claim , the seller can proceed against the buyer solely on the basis of this acknowledgment of debt and only has to present the facts for the conclusion of the acknowledgment of debt contract and, if necessary, prove it. The purchase price claim used here as an example, however, retains its function as the legal ground for the abstract acknowledgment of debt. If the purchase price claim does not actually exist, the seller is unjustifiably enriched with the abstract acknowledgment of debt . The buyer can then his acknowledgment of debt according to § 812 para. 1 sentence 1 alt. 1 BGB (so-called performance condition ). The facts for the non-existence of the purchase price claim then have to be presented and proven in the process - unlike in the normal purchase price action. As a result, the abstract contractual relationship “merely” reverses the burden of proof ( reversal of the burden of proof ). Because the acknowledgment is usually in writing, the creditor can obtain a reservation judgment relatively quickly in the document process , from which he can then pursue foreclosure against the debtor , while in the possibly lengthy follow-up proceedings about the reclamation of the acknowledgment of debt is still disputed.
The promise of debt, which is closely linked to the abstract acknowledgment of debt, is a contract through which a performance is promised in such a way that the promise is to independently justify the performance ( § 780 BGB). The formal requirements and the legal consequences are the same as with the abstract acknowledgment of guilt, so that it is often a question of formulation what kind of guilt is present. A declaratory promise of guilt is conceptually excluded (so-called Latin contradictio in adiecto ). There is a kind of unilateral promise of guilt only in the form of an advertisement , which is aimed at the public and has other purposes.
Causal (declaratory) acknowledgment of guilt
The Reichsgericht (RG) had already developed the declaratory acknowledgment of guilt - a type of contract not regulated in the BGB - in May 1916. Strictly speaking, it is not an admission of guilt. A declaratory acknowledgment of guilt is understood to mean a contract which, in contrast to the constitutive acknowledgment of guilt, does not raise the claim in question to a new basis for a claim , but reinforces this claim while maintaining the ground for the claim by withdrawing objections from the opposing party to the reason for the claim. Objections and defenses that existed when the declaration was made and were known to him or which he at least expected to be withdrawn will be withdrawn from the opposing party . A regular aim of declaratory acknowledgment of guilt is to facilitate evidence in favor of the creditor. The purpose of such a contract is to remove the obligation as a whole or at least in certain relationships from the legal dispute or the uncertainty and (in this respect) to finally determine it. In case of doubt, it is to be regarded as a waiver of all objections to the initial claim known or considered possible at the time of its submission. If the debtor declares that the claim is justified or that he accepts it, this is usually a confirmatory acknowledgment by which only those objections are excluded that are known to the debtor or that he can expect.
Since Friedrich Kübler, the declaratory acknowledgment of debt has been increasingly referred to as a causal declaration contract .
Unilateral (non-contractual) acknowledgment of guilt
This does not belong to the real acknowledgments of guilt, because it is only a one-sided declaration of knowledge or will and does not belong to the contracts like the real acknowledgments of guilt. It is also valid without any form . The acknowledgment of a guilt unilaterally declared by the debtor does not in itself create a legal bond, but is only significant as evidence for the existence of the recognized guilt. Acknowledgment can be given without any legal obligation, for example to reassure the creditor or to make it easier for him to provide evidence. If the clues are not sufficient for the acceptance of a declaratory acknowledgment contract and no reason (subjective uncertainty or legal dispute) for submitting the declaration is recognizable, there is a unilateral, non-legal acknowledgment that can be invalidated by simple counter-evidence or by way of shaking.
Negative acknowledgment of guilt
The negative acknowledgment of debt, with which it is declared that a debt relationship does not exist, is not an acknowledgment of debt, but qualifies as a remission in accordance with Section 397 (2) BGB; Section 781 BGB does not apply to this. It is a stating contract between the creditor and the debtor that a debt no longer exists. If, contrary to this determination, a liability actually still existed, the negative acknowledgment of guilt has the effect of a remission and the liability expires. The pairs of terms that exist in the (positive) acknowledgment of guilt, abstract - constitutive and causal - declaratory are not applicable here. A negative acknowledgment of guilt is declaratory if the obligation in question does not actually exist, otherwise it is constitutive. A negative admission of guilt is usually abstract, like the remission, and gives the obligee the option of conditionality. It is causal and not kondizierbar if the contracting parties intended to eliminate the negative acknowledgment of debt their uncertainty about the existence of the liability. If, contrary to the notion of the parties when the contract was concluded, there was actually a liability regarding the negative acknowledgment of guilt, then the negative acknowledgment of guilt, intended only for declaratory purposes, leads to the extinction of the debt. In this case, too, the prevailing opinion regards the negative acknowledgment of guilt as abstract and conditional in accordance with Section 812 (2) of the German Civil Code (BGB), while a minor opinion considers the negative acknowledgment of guilt to be causal and not conditional. Herein lies a commonality for declaratory acting finding agreement .
All contractual acknowledgments of debt as well as all declarations and behaviors of a debtor that can be interpreted as an acknowledgment of his obligation lead to a restart of the statute of limitations according to § 212 BGB.
Acknowledgment of guilt and promises of guilt are increasingly used in business life and appear in many different forms. In everyday life, one encounters admission of guilt in a variety of situations without those involved being aware of this legal situation. This applies in particular to declarations made in connection with traffic accidents.
The acknowledgment of guilt that was declared following a traffic accident is of the greatest practical importance . The allegedly guilty party declares that he is solely responsible for the accident. According to Section 34 (1) No. 5b StVO , every person involved in an accident is only obliged to provide their own name and address on request, as well as to present their own driver's license and vehicle registration document and to provide information about liability insurance to the best of their knowledge ; the submission of an acknowledgment of guilt is not a legal obligation. Formulations voluntarily submitted in writing such as “I am to blame for the accident” or “I undertake to fully reimburse the damage” must always be avoided. Even if the reform of the VVG of January 2008 no longer penalizes the issuance of such acknowledgments of guilt with exemption from performance, the insurance only has to replace legal claims if acknowledgment of guilt has been issued; If the policyholder promises more to the other party in the accident, he must bear this himself. Such declarations are not binding on the motor liability insurer . In the case of liability damage, the policyholder is not entitled, in accordance with Section 7 (II) of the General Insurance Contract, to recognize or satisfy a claim in whole or in part without the prior consent of the insurer. This does not apply if, under the circumstances, the policyholder could not refuse recognition or satisfaction without obvious inequity. According to Section 105 VVG, an agreement according to which the insurer is not obliged to provide benefits if the policyholder recognizes the claim of a third party without his consent is ineffective.
If a person involved in the accident makes a declaration of guilt at the scene of the accident, then it is in no way a declaratory admission of guilt (with the result that the declaring party would be excluded from then on with all objections and defenses known to him at the time the declaration was made), but merely a “testimony against oneself” with a corresponding circumstantial effect or a declaration, the effect of which is that the burden of proof is reversed. This often delivered after a traffic accident "acknowledgment of debt" is from the Court considered not even as a declaratory acknowledgment of debt, but only as an explanation for the factual circumstances of the accident. In the case law of the BGH it is recognized that mere confessions of guilt, which do not embody any special legal obligation of the declaring party, improve the evidence of the declaration recipient.
Acknowledgments of debt are also common in banking . The credit advice of a credit institution is usually an abstract acknowledgment of debt in favor of the transfer recipient. From the credit and the current contract with the corresponding daily balance thus follows for the account holder is entitled to payment of the credited amount. According to the prevailing view today, the acknowledgment of balance is also an abstract acknowledgment of debt within the meaning of § 781 BGB. Acknowledgments of guilt also occur when paying with a debit card or Maestro card : The use of the original card is an abstract promise of debt that the bank obliges the merchant to undertake, even if it is misused , unless the merchant has acted in breach of trust or a card forgery was used. The opening of a documentary credit and the notification from the crediting bank to assume a payment liability are abstract promises of debt. In the case of the promissory note , the obligee is not legally obliged to document and prove the loan and other circumstances; rather, it is up to the debtor to demonstrate and prove that the obligation evidenced by the promissory note did not arise.
Acknowledgments of debt are also customary in banking in the context of loan security, especially in connection with loans secured by mortgage . The mortgage , mortgage or land charge is not to secure the actual loan receivable in the Land Registry entered , but to ensure the - the same delivered - abstract guilt promise.
The third-party debtor's declaration of Section 840 ZPO is a declaratory acknowledgment of debt, according to which the obligee may request a declaration from the third-party debtor as to whether and to what extent the third-party debtor recognizes the claim as justified and is willing to make payment. In the case of loan collateral, this third-party debtor's declaration is used by collateral buyers such as credit institutions at the third-party debtor in the context of the open assignment or pledge .
In an unconditional payment of operating costs subsequent claim by the tenant or an unconditional withdrawal of an operating credit by the landlord not a declaratory acknowledgment of debt is seen.
In Austria , a constitutive recognition as a new, independent reason for an obligation - due to the fundamental inadmissibility of abstract transactions - is only effective under limited conditions. Acknowledgment presupposes a real, serious dispute or at least doubt about the validity of the claim. According to § 1486 number 1 ABGB, claims for the delivery of things or the execution of work or other services in a commercial, commercial or other business operation expire after three years. The statute of limitations is interrupted if the debtor has expressly or conclusively recognized the claim ( § 1497 ABGB). This does not require any constitutive acknowledgment, even declarative acknowledgment, a mere declaration of knowledge, interrupts the statute of limitations. The Austrian procedural law does not expressly regulate the acknowledgment, but it is known as a subtype of the settlement as "one-sided yielding". It is a declaration of agreement by which one party fully concedes the right in question.
In Switzerland , the debt acknowledgment is called the admission of guilt and is the confirmation of the debtor that a claim against him is justified. According to Art. 17 OR, it is also valid without specifying a reason for the obligation. An example of an acknowledgment of debt secured in rem is the mortgage bond . In Swiss debt enforcement law , the existence of an acknowledgment of guilt means that the creditor does not have to follow the normal process in the legal proceedings , but can be granted provisional legal disclosure. The Swiss family law provides in Art. 260 ZGB that the child relationship existing only to the mother can be recognized by the father. According to Art. 260a of the Civil Code, anyone in the court can contest the recognition , namely by the mother, the child and, after his death, the descendants as well as the home or community of residence of the recognizing person.
In common law , there is an abstract acknowledgment of debt ( English acknowledg (e) ment of debt ) or debt promise ( English promise to perform ) in the form of a sealed certificate of recognition ( English deed ). According to the doctrine of the consideration (England and Wales) or the USA , the admission of guilt / promise of debt and the consideration must be combined to form a uniform legal transaction . The promissory note (“IOU”; abbreviation from English I owe you , “I owe you”) is abstract here and does not name the reason for the guilt. The IOU provides proof of the conclusion of a balance acknowledgment ( English account stated ), but not beyond that also for the existence of the acknowledged debt. As in Germany, the acknowledgment of the balance is an acknowledgment of debt.
- Fritz Klingmüller : The promise of debt and acknowledgment of debt of the civil code for the German Reich , Jena, Fischer, 1903.
- Peter Marburger : The causal acknowledgment of guilt as a unilateral declaration contract , Berlin [u. a.], de Gruyter, 1971, zugl .: Köln, Univ., Diss., 1969, ISBN 3-11-00-1721
- Wolfgang Baumann: Das Schuldanerkenntnis , Berlin, Duncker & Humblot, 1992, zugl .: Bielefeld, Univ., Diss., 1990, ISBN 3-428-07207-3 .
- Erik Ehmann: Acknowledgment of debt and comparison. zugl .: München, Univ., Diss., 2004, Verlag CH Beck, Munich, 2005, ISBN 3-406-53392-2 .
- Wolfgang Baumann, The abstraction of the acknowledgment of debt - A contribution to the abstraction principle, to § 781 BGB and § 812 Abs. 2 BGB , in: Festschrift für Spiegelberger (2009) p. 1176 ff.
- ↑ RGZ 58, 200
- ↑ BGB - RGRK, Das Bürgerliche Gesetzbuch , Volume 2, Part 4, 1978, p. 16
- ^ Wolfgang Baumann, Das Schuldanerkenntnis , 1992, p. 61
- ↑ on the criteria cf. BAG NJW 1999, 2059 and BAG NJW 2005, 3164
- ↑ RGZ 75, 4, 5 f.
- ^ RG, judgment of May 1, 1916, RG JW 1916, 960 f.
- ↑ Wolfgang Baumann, Das Schuldanerkenntnis , 1992, p. 60
- ^ BGH, judgment of January 10, 1984, Az .: VI ZR 64/82 = NJW 1984, 799
- ^ BGH, judgment of March 30, 2006, Az .: III ZR 187/05
- ↑ BGH NJW 1983, 1903 , 1904
- ^ Friedrich Kübler, Determination and Guarantee - A comparative law and dogmatic treatise against the doctrine of the abstract contract of obligations in civil and commercial law , 1967, p. 90 f.
- ↑ BGH in: Der Betrieb 1974, 1013 f.
- ↑ BGHZ 66, 250. ( Page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.
- ↑ Julia Haas, Promise and Recognition of Debt , 2010, p. 170
- ↑ Niklas Wielandt, Die unilaterally obligatory debt promise , 2010, p. 5
- ↑ Julia Haas, Promise of Guilt and Acknowledgment of Debt , 2011, p. 258
- ↑ Martin Stadler, Die Kfz-Versicherung , 2008, p. 176
- ^ BGH, judgment of January 10, 1984, Az .: VI ZR 64/82 = NJW 1984, 799
- ↑ OLG Hamm, judgment of January 15, 2016, Az .: 9 U 30/15
- ↑ BGHZ 66, 250 , 254 f.
- ↑ global abstract acknowledgment of guilt ; BGHZ 103, 143 , 146
- ^ BGH WM 1982, 291
- ↑ Niklas Wielandt, Die unilaterally obligatory debt promise , 2010, p. 72
- ↑ Wolfgang Baumann, Das Schuldanerkenntnis , 1992, p. 33
- ↑ Niklas Wielandt, Die unilaterally obligatory debt promise , 2010, p. 53
- ^ BGH, judgment of January 12, 2011, Az .: XIII ZR 296/09 = BGH NJW 2011, 843
- ^ Franz Bydlinski , in: Heinrich Klang , Commentary on the ABGB , 2nd edition, Volume, 4 Teilband 2, 1978, p. 399 f.
- ^ OGH, judgment of December 9, 1997, Az .: 4Ob308 / 97s
- ↑ Christian von Bar , Foreign Private and Private Procedure Law in German , 2011, p. 447
- ↑ BGE 132 III 480; Marc Hunziker / Michel Pellascio, Repetitorium Debt Enforcement and Bankruptcy Law , 2012, p. 92
- ↑ Max Rheinstein, The Structure of the Contractual Obligation in Anglo-American Law , 1932, p. 106
- ^ Max Rheinstein, The structure of the contractual obligation in Anglo-American law , 1932, p. 109