Assumption of debt
The assumption of debt is Schuldrecht a type of debt assumption , in which the previous debtor at least one further debtor as jointly and added occurs.
General
When assumption of debt (including cumulative assumption of debt or liability for debt) is a kind of veto , because a legal entity , the liability of another takes over for the debt. The old debtor remains obliged, the new debtor enters the debt relationship as a further debtor . In addition to his previous debtor, the obligee receives at least one further debtor, which can reduce the obligee's credit risk . The creditworthiness of the debtor is of crucial importance for the creditor.
history
According to the Gaian institutions , there was already in classical Roman law the construction of several legal participants as joint believers or joint debtors ( Latin duo rei promittendi ). In the case of Sextus Pomponius , it is noted that a debt accession came about as soon as another debtor vowed ( Latin spondeo ) to be responsible for the debt alongside the main debtor. Ulpian stated that the joint and several debt partnership was not to be understood as a novation ( Latin novatio ).
Although the BGB, which came into force in January 1900, is largely based on the institutional system of Roman law, it did not consider the assumption of guilt to be in need of regulation. Because of the lack of regulation, the accession to guilt practiced today can be traced back to Kautelar practice . In March 1902, shortly after the introduction of the BGB , the Reichsgericht (RG) was initially still opposed to joining the guilty party . In the underlying case, there was also no privative assumption of debt in accordance with § 414 BGB, because the original debtor was not to be released from his liability; also lacked the for guarantees applicable writing requirement . In November 1904 the RG recognized the cumulative assumption of debt as an ordinary joint and several debt partnership within the meaning of Section 421 of the German Civil Code (BGB) and considered it “nothing more than a guarantee”. The RG considered the written form requirement for the guarantee to be dispensable when assuming debt. In November 1906, the RG finally recognized the cumulative assumption of debt as an independent legal institution .
Legal issues
The assumption of debt is not regulated in the law, but permitted within the scope of the freedom of contract as a voluntary joint and several debt partnership in accordance with Section 311 (1) BGB. The debtors are jointly and severally liable to their joint creditor. Reasons for assuming debt are above all the loan security or housing rent . In the first case, an additional debtor is liable together with the borrower for his loan ; in the second case, a debtor assumes the tenant's obligations under the rental agreement in addition to the tenant .
The debt accession contract can be concluded on the one hand between the creditor and the accession debtor, but on the other hand also between the old debtor and the new accession debtor in the form of a real contract in favor of third parties ( Section 328 (1) BGB). The former form is used in the lending business of credit institutions or in leases. The second form requires the consent of the obligee ( Section 415 (1) BGB). After conclusion of the fault accession the two debtor adhere to their common creditor jointly and ( § 421 BGB) so that its creditors of each individual debtor or debtor by all together require payment of the debt can.
Demarcation
If the person joining a debt is included in the exchange of services to the obligee, there is an accession of debt and thus joint and several debt. However, if the debtor is economically outside the exchange of services and he only has an economic interest in the transaction, a guarantee is given. Compared to the guarantee, the assumption of debt has a less pronounced accessory nature ( § 425 BGB; namely only in the case of fulfillment , remission and default ). The situation is similar with the guarantee , where the guarantor has an economic interest in the obligation to pay for a debtor. With the assumption of performance , the person taking over the exemption does not appear as a new debtor, but only releases the original debtor internally from the debt . When issuing a loan , the surety has primary rights vis-à-vis the lender from the contract . The abstract promise of debt differs from the assumption of debt in that it does not have its own typical contractual business purpose and is therefore abstract in terms of content, in contrast to the assumption of debt .
International
Art. 176 para. 1 OR governs in Switzerland , only the assumption of debt, while the assumption of debt as in Germany found no statutory provision. The joint and several liability according to Art. 143 ff. OR applies. In contrast, the assumption of debt in Austria is provided for by law. According to § 1406 Abs. 2 ABGB , the assumption declared to the obligee is to be understood as liability in addition to the previous debtor (accession of debt), there is joint and several liability according to § 1357 ABGB. The surety and payer are also jointly and severally debtor according to § 1357 ABGB.
See also
Individual evidence
- ↑ Otto Palandt / Christian Grüneberg, BGB Commentary , 73rd edition, 2014, overview before Section 414, marginal no. 1
- ^ Gaius , Institutions , 3, 16 pr.
- ^ Sextus Pomponius, 24 lib ad Sabin D 45, 2, 4
- ↑ Ulpian, 47 lib ad Sabin D 45, 2, 3 pr.
- ^ RG, judgment of March 20, 1902, Az .: Rep. VI. 409/01 = RGZ 51, 120 ff.
- ↑ RGZ 51,120, 121
- ↑ RGZ 51,120, 122
- ^ RG, judgment of November 14, 1904, Az .: Rep. VI. 12/04 = RGZ 59, 232 ff.
- ^ RG, judgment of November 23, 1906, Az .: II. 200/06 s = RGZ 61, 318
- ↑ Klaus Bartels, The Contractual Entitlement to Debt in the Structure of Mutual Continuous Obligations , 2003, p. 39
- ↑ Klaus Bartels, The Contractual Entitlement to Debt in the Structure of Mutual Continuous Obligations , 2003, p. 42
- ↑ Klaus Bartels, The Contractual Entitlement to Debt in the Structure of Mutual Long-Term Obligations , 2003, p. 29
- ↑ Klaus Bartels, The contractual debt entry in the structure of mutual long-term obligations , 2003, p. 36 f.
- ↑ Klaus Bartels, The Contractual Entitlement to Debt in the Structure of Mutual Continuous Obligations , 2003, p. 38
