Restrained claim
In German private law, a restrained claim is a claim whose maturity only occurs when the creditor asserts the claim, i.e. when the debtor demands performance .
General
The claim already exists, but the debtor does not have to fulfill it yet . Before asserting the claim , the debtor may not perform without the consent of the obligee.
This has an impact on the default of the debtor and the regular statute of limitations of the claim, since both require the due date ( § 286 Paragraph 1 Sentence 1 and § 199 Paragraph 1 No. 1 BGB ).
A subdued claim is characterized by the fact that the debtor may not perform the service before the obligee demands it . In such claims are in accordance with the law of the Federal (BGH) since entry into force of guilt Modernization Act required for the loan , the deposit and the safekeeping applicable special limitation rules of § § 604 5 BGB, Abs. § 695 sentence 2 BGB and § 604 sentence 3 BGB corresponding applicable. The traveller's entitlement to redeem travel values when booking travel services is, however, not a cautious claim, because it only arises when the traveller's assertion is made . In contrast to a subdued claim, in which the creation of the claim and its assertion by the obligee, there is therefore no risk that the claim is statute-barred at the time it is asserted.
Examples
Cautious claims under civil law are in particular:
- the affidavit of the information ( § 259 Abs. 2 BGB)
- the right to compensation instead of performance ( § 281 BGB)
- the surrender of the replacement ( § 285 BGB)
- the receipt ( § 368 BGB)
- the notification of the assumption of a mortgage debt ( Section 416 (3) sentence 1 BGB)
- the buyer's claim for subsequent performance ( § 439 BGB)
- the employee's free time to look for a job ( § 629 BGB)
- the qualified certificate ( § 630 sentence 2 BGB)
- the depositor's right to reclaim ( § 695 BGB)
- the early withdrawal of the custodian ( § 696 sentence 2 BGB)
- the transfer of inheritance objects by the executor ( § 2217 BGB)
- the heir's obligation to provide information ( § 2314 BGB)
The guarantee claim ( § 765 BGB) is not a restrained claim .
Individual evidence
- ↑ a b Bamberger / Roth / Lorenz , 3rd edition, § 271 Rn. 2.
- ↑ BGH, judgment of May 4, 2017, Az .: I ZR 113/16 = BGH WM 2018, 915
- ↑ MüKo-BGB / Ernst , 6th edition, § 281 Rn. 108.
- ↑ Jauernig / Stadler , 15th edition, § 285 Rn. 10; Bamberger / Roth / Lorenz , 3rd edition, § 285 Rn. 13; MüKo-BGB / Emmerich , 6th edition, § 285 Rn. 29
- ↑ MüKo-BGB / Fetzer , 6th edition, § 368 Rn. 9.
- ↑ Bamberger / Roth / Faust , 3rd edition, § 439 Rn. 11.
- ↑ BGH, judgment of January 29, 2008, Az .: XI ZR 160/07 = BGHZ 175, 161 , Rn. 24
