Assignment of security

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The assignment of security ( lat. Cessio in securitatem debiti ) as a means of credit protection , a transaction which the fuse - not gratification - a lender aims for its (credit) demand by the borrower to the lender as security a requirement assigns .

Legal basis

The in § § 398 ff. BGB regulated assignment has in satisfaction of , because they are considered final consideration of a (mandatory) undertaking business as buying , agency or - - as in the assignment of security security agreement is provided. In the lending business at banks , however, the assignment of security is not carried out to fulfill a debt (credit) relationship , but only to secure it as fulfillment of a regularly made mandatory security agreement.

Security agreement / security contract

In the security agreement it is made clear that the assignment should only be made as security. For this purpose, between assignor (will guarantor ) and assignee ( taker ) a trust relationship established, which is characterized in that the assignee in the external relationship obtained more legal power than he is given internally (between the parties).

The assignment of security is based on the security contract, which regulates the essential rights and obligations of the parties under the law of obligations. For example, the assignee is obliged by the security agreement to transfer the claim back to the assignor when the security provider (assignor) has settled his secured debt. Conversely, the cedant is obliged to assign another claim to the security buyer (assignee) if the previous one proves to be of no value. If the collateral event occurs, for example through the termination of a loan , the assignee from the collateral agreement has the right to disclose the claims assigned to him to the third-party debtor (if not already done) and to request him to pay only to the assignee.

requirements

If there is a valid security contract for a security assignment, a few legal obstacles must be observed that could then stand in the way of a subsequent assignment of claims.

Certainty

A disposition over things presupposes that the subject of the disposition is specifically determined or at least can be determined. It applies not only to property law, but also to the assignment of claims by way of security, the law must be described as sufficiently determined or determinable. Its function is to provide legal clarity. It is in the interests of legal relations that it is clear what it relates to every change of assignment. It must be possible to define who owns what and which claim is to be assigned. This applies in particular to a set of claims.

Transferability

Another prerequisite for an effective assignment of security is that the claim is transferable . This will usually be the case. The only exceptions are if contractual or statutory prohibitions on assignment apply. Such assignment prohibitions are regulated in § § 399 , § 400 BGB and in individual special provisions. An illegal assignment is absolutely ineffective , so that “it cannot transfer any creditor rights” and remains in the property of the assignor.

  • The claim must exist at the time ( verity ) at which it is to be transferred. In addition, the assignor must also be the owner of the claim. A good faith acquisition of a claim is not possible, such as the lack of legal norms that the property law provisions of § § 932 et seq., § 892 correspond BGB proves.
  • According to § 399 Alt. 1 BGB, a claim cannot be assigned if the performance to someone other than the original creditor cannot be made without changing its content (so-called highly personal claims, e.g. from family law obligations).
  • The assignment can also be made contractually by means of a corresponding agreement in accordance with Section 399 Alt. 2 BGB are excluded. However, such a contractual assignment prohibition is exceptionally subject to the requirements of § 405 Alt. 2 BGB curable through the good faith of the purchaser. An exception to the possibility of contractual exclusion of assignment is regulated in Section 354a of the German Commercial Code: If the transaction is a commercial transaction for both parties or if the debtor is a legal entity under public law or a special fund under public law , the assignment is nevertheless effective, but the debtor can also pay the cedant with a discharging effect.
  • Statutory prohibitions of assignment for highly personal rights exist in Section 717 (2) BGB (mutual shareholder claims ) or Section 29 sentence 2 UrhG (for copyrights ). Section 613 sentence 2 (entitlement to service), Section 664 (2) (execution of orders), Section 1059 BGB (usufruct) and certain social benefits from the SGB are regarded as "in doubt not transferable" .
  • The subsistence level of wages and salaries (§ § 850 ff. ZPO), certain fringe benefits (50% of overtime pay , vacation and anniversary bonuses, danger, dirt and hardship allowances, parts of the Christmas bonus, marriage and childbirth allowances, are non- attachable and therefore not transferable , § 850a ZPO), various long-term benefits (statutory maintenance claims, contractually based accident and disability pensions and pension payments, payments from widows, orphans, relief and health insurances, § 850b ZPO), pension arrears from a retirement part and ongoing service and Pension payments for members of the executive board of an AG (Sections 850 (4), 850e (1) ZPO). Claims from life insurance in the event of death (subsistence level resulting from this; Section 850b ZPO) are also not transferable. The recognized goodwill is also classified as non-transferable.
  • In the case of life insurance in particular , the assignability of a claim is made dependent on the consent of the third party debtor (life insurance) (see Section 13 (3) General Life Insurance Conditions). If an assignment is made without notification to the insurance company, the assignment is pending ineffective . This also applies if a certain form (such as a form, official form) is contractually stipulated for the assignment. However, if the assignment violates a legally stipulated form requirement ( e.g. written form or certification ), it is incurably void.

Types of security assignment

  • Silent or open assignment : As with the assignment provided for by law, there is also the option of silent or open assignment with the security assignment. As a rule, the assignee does not immediately disclose the assignment to the debtor ( silent assignment ). However, as mentioned above for life insurance claims, there is a need in some cases to notify the debtor of an assignment so that the assignment can even take effect:
    • The insurer must be notified of the assignment of life insurance policies because a silent assignment is absolutely ineffective ;
    • The GmbH must be notified of any assignment of GmbH shares ( Section 16 (1) GmbHG).
    • Authorities ("public coffers") make the assignment of salary claims dependent on a (certified) notification (so-called fiscal privilege; § 411 BGB).
    • The cession of claims for reimbursement / remuneration of taxes must be reported to the responsible tax authority on an officially prescribed form ( Section 46 (3) AO).
In the notice of assignment, the assignor confirms to the debtor that he has assigned a certain claim to the assignee and requests the debtor to only make payments to the assignee. This is different with the silent assignment: here the debtor continues to pay the assignor - actually only authorized to receive - due to lack of knowledge of the assignment.
  • Einzelzession or Rahmenzession : It is possible to fuse assignment of individual claims ( Einzelzession ) or the assignment of multiple demands (demand entirety; Rahmenzession ).
    • Typical shape of the Einzelzession is the payroll assignment , wherein the borrowing workers its claims to earned income to the bank for example in consumer credit or credit facilities assigns security purposes.
    • In corporate financing, framework assignments include the simultaneous assignment of several receivables (e.g. from deliveries and services ), which are listed in a so-called list of receivables . A distinction must be made between shell and global assignments. While in the Mantelzession the transfer of this requirement directories constitutive has meaning and therefore the assignment legal effect as early as during the transfer, the transfer of directories when has global assignment only declaratory meaning; because in the case of a global assignment, the assignment is only legally valid when the claim arises.

Types of Claims

Rights suitable for assignment are e.g. B. Rights from rental contracts , claims from employment contracts (wage and salary assignment) or delivery and service (e.g. purchase contract ), rights from investments in companies , rights from insurance , rights from bank balances , building society contracts or other forms of investment (assignment of the payment claim ) .

The assignment of future claims will be recognized as effective, even if there is no legal relationship between the obligee and the potential debtor ( advance assignment ). The person of the future debtor can therefore still be unknown. All that is required is the possibility of such a claim and the specific or determinable designation of the debtor and the claim.

Ancillary rights

With the claim, all ancillary rights are automatically assigned to the assignee ( Section 401 (1) BGB). These include, in particular, accessory loan collateral, i.e. mortgages , liens , guarantees and the assumption of debt . It should be noted that the assignee has the right to surrender all securities (mortgage letter) or documents (original guarantee certificate) ( Section 402 BGB) so that he can assert ancillary rights.

Recognition under banking supervisory law

A large part of the assignment of accounts receivable is used as collateral for credit institutions . As part of the assignment of security, these grant loans to borrowers based on the creditworthiness of the cedant.

General

Collateral in force since January 2014 banking supervisory law as a credit risk mitigation techniques . If credit collateral is recognized as a credit risk mitigation technique by the Capital Adequacy Regulation (CRR) applicable in all EU member states , it leads to a lower level of equity capital for banks than for unsecured loans . As a result, secured loans can be granted up to the lending limit with a more favorable interest rate .

Assignments belong to the credit risk mitigation techniques “with security deposit ” ( real securities ; Art. 4 Para. 1 No. 58 CRR). Art. 194 CRR establishes principles for the supervisory recognition of credit risk mitigation techniques, after which loan collateral in particular in all jurisdictions legally ( English valid ) and enforceable ( English enforceable must be) sufficiently liquid , over time worth stable and at a credit event promptly recyclable need to be. The positive correlation between the collateral and the borrower's creditworthiness must not be very high (Art. 194 (4) CRR). A legal risk is in doubt by legal opinion ruled out.

Assignment of security

The CRR refer to real collateral as financial collateral . They are listed in Art. 197 CRR:

This financial collateral is recognized as a credit risk mitigation technique in accordance with Art. 207 CRR if

According to Art. 209 CRR, several claims ( framework assignment ) may serve as loan security under the following conditions:

  • They must be legally secure, in particular they must be usable and enforceable in all legal systems (Art. 209 (2) CRR);
  • individual claims must be diversified and must not have an excessively positive correlation with the borrower (Art. 209 Paragraph 3c CRR).
  • The third-party debtors must not belong to the borrower's group and are not its employees (Art. 209 Paragraph 3d CRR).

The CRR defines diversification as a broad spread of individual receivables according to the amount of the receivable ( granularity ) and according to debtors , economic sectors , foreign currencies or domestic and international ( cluster risk ). The shell or global assignment is not very diversified, for example, if delivery receivables are mainly assigned to a single group. A significant positive correlation exists, for example, when a company assigns receivables from employer loans to the bank, as these receivables from employees can be linked to an increased job risk during the company crisis, which also jeopardizes the repayment of these employer loans .

  • Claims from addresses, subsidiaries and employees associated with the borrower are not security (Art. 209 Para. 3d CRR). So if a company is granted a loan and at the same time an employee of the company is provided a consumer loan with wage and salary assignment as collateral, the latter cannot be recognized as a credit risk reduction technique.
  • Assignments of bank balances and life insurances must be disclosed in accordance with Art. 212 CRR and confirmed by the third party debtor.

If the security assignments do not meet these regulatory requirements, they are classified as unsecured loans.

Individual evidence

  1. ↑ Jürgen F. Baur / Rolf Stümer, Property Law , 1999, § 4 Rn. 17th
  2. ↑ BGHZ 108, 172, 175
  3. ↑ BGH NJW 1970, 283
  4. ^ BGH WM 1991, 1552
  5. ↑ BGHZ 112, 387, 389f.
  6. ↑ BGH WM 1977, 819
  7. ↑ BGH NJW 1986, 2107
  8. ↑ BGH ZIP 1991, 31
  9. ↑ BGH WM 2000, 126
  10. ↑ Thorsten Gendrich / Walter Gruber / Ronny Hahn (eds.): Handbuch Solvableness , 2014, p. 169 FN 16.
  11. ↑ Thorsten Gendrich / Walter Gruber / Ronny Hahn (eds.): Handbuch Solvableness , 2014, p. 172.

literature

  • Eberhard Wagner: Contractual prohibitions of assignment in the system of civil law obstacles to disposal (=  Tübingen jurisprudential treatises . Volume 76 ). Mohr Siebeck, 1994, ISBN 3-16-146209-2 , ISSN  0082-6731 , p. 194 ( limited preview in Google Book search).