A liability in the law of obligations is the obligation of a debtor to his obligee . In the business sense, liability stands for an open financial obligation of a company to a supplier or other creditor. The counterpart to liability is the corresponding requirement .
In general, the liability is that the debtor is required to something to do , to tolerate or to refrain . This liability exists until they at maturity fulfilled is. Claims are the corresponding counterpart to liability. Because a claim is binding on the debtor, it is also referred to as the debtor's liability. In order to fulfill his obligation, the debtor usually has to do something, such as paying the purchase price or delivering the goods .
The BGB mentions the obligation very often, but does not define it. It is a performance obligation of the debtor, which does not necessarily have to be a monetary liability ( debt ). This service obligation can be divided into main service obligations and ancillary service obligations . Items are allocated to the liability is also of guilt spoken. The obligee has the right (the claim ) of the obligee to demand performance from the debtor ; this corresponds to the obligation ( obligation ) of the debtor to provide this service to the obligee.
According to BGB , a partnership with legal capacity is a partnership that is equipped with the ability to acquire rights and enter into liabilities. The vicarious agent according to BGB a person whose the debtor uses to fulfill his commitment. The borrower can meet his liabilities from a consumer loan contract in accordance with (2) BGB at any time, in whole or in part, ahead of time. In marriage law , initial assets according to (1) BGB are assets that belong to a spouse after deduction of liabilities when the property regime begins .(2)
A further distinction is to be made between imperfect liabilities ( bonds in kind ) and facts similar to liability :
- Imperfect liabilities:
- Not enforceable claims are stale claims if the debtor the statute of limitations is imposed ( BGB, BGB); Claims that have been issued or are deemed to have been waived in accordance with Section 225 InsO according to a legally binding insolvency plan are not enforceable to protect the debtor ( InsO ), the same applies to insolvency claims after the discharge of residual debt has been granted ( InsO). Also, from a betrothal in accordance with para. 1 BGB not be sued for entering into marriage.
- Fulfillable non-claims: The performance owed cannot be demanded, but fulfilled and then not reclaimed because there was no right to claim. The liability lacks the right to claim, i.e. the ability, among other things, to be sued , secured or offset ; there is only one possibility of fulfillment. Liabilities from games , bets and lottery not approved by the state cannot be claimed, but only fulfilled ( BGB, BGB). There are special regulations for financial futures in accordance with WpHG . A marriage mediation wage can not be claimed, but only met ( BGB).
- Facts similar to liability:
- Not zurückforderbare decency grants: the for the purpose of fulfilling an obligation under can BGB not be reclaimed if the supplier has known that he was not obligated to pay, or if the performance of a moral duty or to be taken one on the decency Consideration corresponded. If equipment is provided to a child without a legal obligation to do so, reclaim cannot be made for reasons of decency ( BGB, BGB).
- Burdens are activities that are not legally required to be carried out, but non-compliance with them entails legal disadvantages ( HGB , ff. VVG ).
- To obligations it has a legal obligation, such as to display , communications or information under VVG or VVG without the observance of the policyholder 's insurance loses.
The imperfect liabilities and similar facts stand against the real liabilities.
Creation / transfer / expiration
Liabilities arise when the debtor fulfills what is actually an immediate performance obligation at a later date , although the obligee has already paid the consideration . This is the case with sales contracts, for example, if the buyer has not yet paid the purchase price (due to the payment term ), but the supplier has already delivered or the buyer has made an advance payment but the supplier has not yet delivered (due to the delivery period ). Liabilities can be transferred through the assumption of debt , they expire through repayment , offsetting ( BGB), confusion ( (2) BGB) or debt relief ( (1) BGB).
In the balance sheet , the (precisely known) liabilities are to be separated from the ( uncertain ) provisions . Central regulations for this are Abs. 3 lit. C HGB (liabilities), Paragraph 2 HGB (provisions) and HGB. Contingent liabilities are to be shown under the balance sheet on the liabilities side in accordance with German Commercial Code . There are special regulations for the passivation of liabilities for credit institutions ( RechKredV ) and insurers ( VAG and VAG).
- Test criteria for a liability under accounting law:
- There must be an economic burden on assets. According to this, an obligation under civil or public law is neither a necessary nor sufficient requirement for a liability under accounting law; Purely economic performance obligations are also to be recognized as a liability. A liability under accounting law can therefore only be recognized as a liability if the future expenses to meet the obligation are immediately deductible expenses.
- The economic burden on assets must also be tangible. A liability under accounting law must be sufficiently specified, otherwise it is referred to as a general entrepreneurial risk . The tangibility of the burden is substantiated on the one hand by the principle of external obligation, according to which the obligation must exist towards a third party for reasons of objectivity. A performance obligation towards a third party can be legally justified or consist of a factual performance obligation. In addition, the claim from the obligation must be "probable", which is the case if there are more reasons for than against the existence or creation of a liability and a future claim. This is summarized under the concept of the objectified minimum probability .
- The guilt must meet the criterion of quantifiability. This is usually equated with independent assessability, which requires an estimation process in the case of uncertain liabilities.
According to the established case law of the Federal Fiscal Court (BFH), the legal complete emergence and the economic causation are relevant as passivation times . As a rule, the point in time of a possible legal formation can be determined relatively easily and unambiguously, whereas the point in time of the economic causation is more uncertain and therefore much more difficult to determine. As a rule, it is specified using the so-called realization principle in (1) No. 4 HGB. According to this principle, the realized income should be allocated to the expenses that were necessary to achieve the sales (factual component; English Matching Principle ) (in addition: arguments about economically essential factual prerequisites possible). The BFH wants the debt to be passivated at the earlier of the two times.
Liabilities in the accounting sense are obligations of a company for a delivery or other service , whereby this service must be enforceable , its fulfillment must lead to a reduction in assets and the amount and due date of the service to be provided must be quantifiable . In the case of non-banks, the main creditors are the three large groups of creditors ( suppliers ), credit institutions and the tax office . Exactly these groups can be found in (3) lit. C HGB and IAS 1.68 / IAS 32 under the generic term financial liabilities ( English financial liabilities ) as trade and other payables ( English trade and other payables ) and income tax liabilities ( English current taxes ) again. The International Accounting Standards and the International Financial Reporting Standards (IFRS) define a liability in the framework (F.49b IFRS) as a current obligation based on a past event that results in a probable future outflow of resources.
They are valued in accordance with (1) of the German Commercial Code (HGB) at their settlement amount or in accordance with IAS 39.43 with the fair value , in fact with the acquisition costs in accordance with IAS 39.AG.64 . In the case of foreign currency debts, the currency conversion in accordance with German Commercial Code HGB) must be observed, according to which debts must be converted at the mean spot exchange rate on the balance sheet date . Conversely, from sentence 2 of this provision, both the acquisition cost principle and the imparity principle must be observed.
- Mass liability , a special form of liability
- Wolfgang Fikentscher / Andreas Heinemann: law of obligations. 2006, p. 47
- Bernhard Bergmans: Law of Obligations: General And Contract Law Bases. Volume 1, 2009, p. 7
- Wolfgang Fikentscher / Andreas Heinemann: Schuldrecht , 2006, p. 47
- Wolfgang Fikentscher / Andreas Heinemann: Schuldrecht , 2006, p. 47
- BGHZ 24, 378 , 382
- BFH, judgment of April 24, 1968, Az .: IR 50/67 = BFHE 92, 224
- BFH, judgment of September 23, 1969, Az .: IR 22/66 = BFHE 97, 164
- BFH, judgment of April 28, 1971, Az .: IR 39, 40/70 = BFHE 102, 207
- BFH, judgment of April 10, 1991, Az .: II R 118/86 = BFHE 164, 448
- Wolfgang Lück: Liabilities. In: ders. (Ed.): Lexikon der Betriebswirtschaft , 1983, p. 1183
- Gerald Preißler / German Figlin: IFRS Lexicon. 2009, p. 17