Business lien

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The contractor's lien is a legal lien which the entrepreneur as security for its overdue receivables against the customer or client is entitled and to the by the customer into the company brought in things extends.

General

German civil law grants some entrepreneurs a statutory right of lien in favor of their unpaid, due services . These are mostly entrepreneurs within the meaning of Section 14, Paragraph 1 of the German Civil Code ( BGB) , who come under the control of moveable objects that are brought in by the purchaser / client. In addition to the contractor, this also includes the innkeeper and hotelier . These liens are intended to offset the entrepreneur's risk of advance payments (see, for example, Section 641 of the German Civil Code). The provision of § 647 BGB provides as a contractor's lien that entrepreneurs have a lien for their due claims from the between them and the customer according to Section 631 of the German Civil Code (BGB) is entitled to a work contract for the purchaser's items manufactured or repaired by the company. It is a legal lien that arises automatically by law, i.e. it does not have to be expressly agreed in the contract for work . The customer is usually not aware that there is a latent lien on property brought in.

The corporate lien had been anchored in law in Germany since May 1861. A businessman standing in accordance with Art. 241 para. 1 ADHGB against another merchant because of overdue claims a lien on all movable property of the debtor to. The right of retention later included all statutory liens and commercial rights of retention .

requirements

As with all statutory liens, the legal requirements must also be met with the entrepreneur's lien so that the entrepreneur can enforce his lien.

  • Entrepreneur :
    An entrepreneur is the person who has signed a contract for work with the purchaser within the meaning of § 631 BGB. The circle of entrepreneurs is broad; This includes in particular repair workshops (such as car workshops), construction companies or craft businesses (such as carpenters , tailors ).
  • Movable items :
    Only movable items and bearer papers are covered by the lien, but not order papers or recta papers . As a rule, only items that have been repaired by the entrepreneur are eligible for the lien. They have to come under the control of the entrepreneur (i.e. the company or its storage rooms, garages).
  • Ownership :
    The goods must be the sole property of the customer, but mere possession ( e.g. leasing , rent ) is not sufficient. The entrepreneur regularly does not acquire a statutory entrepreneur lien on items repaired by him that do not belong to the customer. Statutory liens are intended purely as security for the debt law claim, so that they can only work against the debtor of the claim. Items delivered to the customer under retention of title are subject to the statutory right of lien with regard to the     expectation right, provided they have been brought in. With full payment of the reserved goods, the lien on the property continues. However, a lien arises when reserved goods prior to their introduction to the entrepreneurs land as collateral were (particularly relates to credit-financed vehicle to be repaired in the workshop).
  • Bringing in :
    is the purely actual process of intentionally bringing movable objects into the entrepreneur's domains. The lien only arises on items that are brought into the control area of ​​the company premises with the will of the customer during his stay. It does not depend on the will of the purchaser to create a lien.
  • Removal :
    If items brought in are removed from the area of ​​control, the entrepreneur's lien expires (analogous to Section 704 sentence 2 BGB, in conjunction with Section 562a sentence 1 BGB).

Strict accessory

The entrepreneur's lien secures claims from the contract for work and services, namely the remuneration claim from § § 631 , § 632 BGB, the compensation claim from § 642 BGB, the claim from § 645 BGB and claims for damages due to breach of contract from § 280 BGB and is therefore strictly ancillary . However, this does not secure other claims.

enforcement

If the entrepreneur's due claims are not paid or not paid in full, he can object to the removal of the items brought in by the customer under the above conditions and exercise his right of lien. Liability occurs as soon as the secured claim has become due. The right of lien may then be realized by selling the lien ( § 1228 BGB). The normal case is the public auction according to § 1235 BGB, whereby the auction proceeds serve to settle the claims.

The entrepreneur may also object to the removal of the items brought in by other staff - than his representative - provided that the items are subject to attachment. If the customer takes the seized items with him, he may have impaired the entrepreneur's statutory lien and thus inflicted a financial disadvantage on him; because the lien, as a property right, belongs to the property of the entrepreneur. The entrepreneur has the right, within the framework of self-defense , to use force to prevent the purchaser from taking the seized items with him ( Section 32 of the Criminal Code).

International

An entrepreneur has in Austria to § 369 para. 1 UGB for the overdue receivables that he has against another entrepreneur from the agreements concluded between them business-related transactions, a statutory lien on the movable property and securities of the debtor, with his will due have come into his possession from business-related transactions. The commission has a lien pursuant to § 397 UGB am on commission, the shipper according to § 410 UGB because of the cargo , the commission , the costs and uses, as well as because of the cargo given advances a lien on the estate, unless he has it still in possession in particular by means of bills of lading , loading slip or warehouse receipt . The bearing holder has according to § 421 UGB to the stored goods due to a lien storage costs , the carrier according to § 440 UGB because of the cargo.

In Switzerland , movable objects and securities that are in the possession of the obligee with the will of the debtor can be withheld by the obligee in accordance with Art. 895 ZGB until his claim has been satisfied if the claim is due and, by its nature, with the object of the Retention related. The obligee has the right of retention, insofar as third parties do not have rights from previous possession, even if the thing that he has received in good faith does not belong to the debtor. If the debtor is insolvent, the obligee has the right of retention even if his claim is not due ( Art. 897 Paragraph 1 ZGB). In the Swiss Debt Enforcement and Bankruptcy Law , the retention right entitles to a debt collection to debt recovery (Art. 37 para. 2 in conjunction with Art. 151 et seq. SchKG). There is also the builder lien according to Art. 837 Para. 1 no. 3 and 2 ZGB as well as Art. 839 ff. ZGB.

See also

Individual evidence

  1. ^ BGH, judgment of December 21, 1960, Az .: VIII ZR 89/59
  2. ^ Benno Mugdan , Motive II, 1899, pp. 404, 405
  3. ↑ BGH NJW 1965, 1475
  4. ↑ Kurt Schellhammer, Law of Obligations according to Claim Basis , 2011, p. 358
  5. ^ BGH , judgment of September 22, 1983, BGHSt 32, 88.
  6. ^ Eduard Dreher / Herbert Tröndle , Commentary on the StGB 41st edition , § 253 StGB margin no. 14 with § 263 StGB marg. 27; Lackner in LK, 10th edition, § 253 StGB marg. 14 with § 263 StGB marg. 180.
  7. ↑ Marc Hunziker / Michel Pellascio, Repetitorium Debt Enforcement and Bankruptcy Law , 2008, p. 163 f., 168