Promissory note
The promissory note is a document issued by the debtor that confirms the existence of a liability in order to facilitate evidence for the obligee .
General
In addition to serving as evidence of the existence of a liability, the promissory note also fulfills the purpose of a financing instrument because it confirms an obligation . That is why the word “Schuldschein” is often used in short for the promissory note loan itself, which is not based on a simple promissory note, but on an extensive loan agreement .
Legal issues
The promissory note is to be legally qualified as an acknowledgment of debt in accordance with Section 781 of the German Civil Code (BGB) , according to which the contract recognizing the obligation must be drawn up in writing . As the documentary evidence he is in civil proceedings a proof , which is also the subject of a certificate process can be. It is not eligible for the capital market because most of the borrowers , who are mostly medium- sized, are not rated by rating agencies , and it is also not a security because it lacks fungibility and easy transferability .
A promissory note is to § 344 para. 2 HGB requires that the issuing him debtor merchant property to § 1 has HGB; it is presumed that the promissory note is deemed to have been drawn in the operation of his trade. The respective creditor is entitled to ownership of the promissory note ( Section 952 (1) BGB). In the process , the borrower's note personally signed by the debtor provides full evidence of the debtor's declaration ( § 416 ZPO ). If the debtor repays his liability, he can request the return of the promissory note against receipt ( Section 371 sentence 1 BGB). Claims of creditors to be to return the promissory note unable so the debtor can train to train against receipt of the service and at the expense of the creditor a publicly certified acknowledgment of extinguishing debt demand ( negative acknowledgment of debt or outdated Mortifikationsschein ; § 371 sentence 2 BGB) .
Practical use
The promissory note occurs most frequently in a borrower's note loan . Here, the loans underlying fulfilled loan agreement (more precisely: the loan agreement) the conditions of a promissory note. The promissory note is considered a money surrogate and can therefore be passed on as a means of payment by way of assignment ; a compulsory acceptance as cash does not exist for third creditor.
International
In Switzerland , according to Art. 88 OR , the debtor may request a receipt and the return of the promissory note upon repayment. If the obligee in Austria has a borrower's note from the debtor, he is obliged to issue a receipt and return it ( § 1428 ABGB ).
In common law the promissory note is colloquially called "IOU" (abbreviation from English I owe you , "I owe you") and is detached from the underlying debt relationship ("abstract"). It represents a mere acknowledgment of debt, which can not be transferred ( english not negotiable ) is. He may no due date included because it otherwise than promissory notes ( English promissory note is valid). The IOU also provides evidence for the conclusion of a balance acknowledgment ( English account stated ), but not beyond that also for the existence of the recognized debt. The IOU is usually not the subject of a required consideration in the context of Consideration (England and Wales) or Consideration (United States) , and certainly not for an appropriate consideration ( Latin quid pro quo ), if it is a sealed document ( English deed ) is made out.
Web links
Individual evidence
- ^ Arthur Curti, England's Private and Commercial Law , Volume 2, 1927, p. 219
- ^ Max Rheinstein, The structure of the contractual obligation in Anglo-American law , 1932, p. 109
