Partial waiver
The partial waiver clause , also known as the release clause , is usually used to rule out the possibility of an immorality and thus the nullity of the global assignment in the event of a collision between different lenders . A distinction is made between mandatory (contractual) and real partial waiver clause.
Mandatory partial waiver
With the obligatory partial waiver clause, the global assignee is only obliged under the law of obligations to withdraw from the claims of the conditional seller. It used to be assumed that if there is no obligatory partial waiver clause in a security agreement, the security agreement is fundamentally ineffective, as the conditional seller is only inadequately protected and the risk of the global assignee becoming insolvent is imposed on him. There was an inconsistent legal opinion between the civil panels of the Federal Court of Justice about the consequences of a lack of appropriate clearance regulations , which is why the Grand Senate was called upon to clarify. For subsequent and not just temporary overcollateralization, he affirms a release claim of the security creditor that is independent of the discretionary approval. To enforce its claims, it must usually first a process against the Globalzessionar lead. Nowadays, case law derives a release clause under the law of obligations from § 133 , § 157 , § 242 BGB , unless such a clause has been expressly agreed. Therefore, security agreements should not be fundamentally ineffective.
Partial waiver in rem
The in rem partial waiver clause stipulates that from the outset only those claims are covered by the global assignment that do not fall under the advance assignment from the extended reservation of title . Only the in rem partial waiver clause is suitable for preventing the global assignment from being immoral. In case of doubt, a global assignment remains effective insofar as it does not affect protected claims.
Breach of contract theory
The breach of contract theory was developed using the typical example of a manufacturer who had to provide his bank with collateral for a loan. If the manufacturer assigns all claims against his customers to the bank by way of security as part of a global assignment , the manufacturer would commit a breach of contract with regard to his own suppliers, provided that these deliver under extended retention of title . This follows from the fact that the suppliers oblige the manufacturer on delivery to assign future claims against customers to them. Due to the principle of priority , however, the manufacturer is only able to assign the claim against his customers once, insofar as the supplier would miss out and the manufacturer would not fulfill his contractual obligations towards him, i.e. commit a breach of contract. Only a release clause in rem can prevent the security agreement from being immoral due to an inducement to breach the contract.
literature
- Dieter Medicus : Civil law. A presentation for exam preparation, arranged according to the requirements. Heymanns, Cologne 1968. 23rd, revised edition with Jens Petersen : Vahlen, Munich 2015, ISBN 978-3-8006-3908-3 , Rnr. 521-524.
- Palandt , German Civil Code , § 398 No. 24. Verlag CH Beck, Munich 1996.
Individual evidence
- ^ Dieter Medicus : Civil law. A presentation for exam preparation, arranged according to the requirements. Heymanns, Cologne 1968. 23rd, revised edition with Jens Petersen : Vahlen, Munich 2015, ISBN 978-3-8006-3908-3 , Rnr. 524.
- ↑ BGHZ 137, 212.
- ↑ Herbert Roth JZ 1998, 462.
- ↑ Palandt , Bürgerliches Gesetzbuch , § 398 No. 24. Verlag CH Beck, Munich 1996.
- ↑ BGH 30, 152; 72, 310.
