Verity
Verity ( Latin veritas 'truth') is a term used in economics and law that denotes the lack of or limited legal validity of claims .
General
The original creditor of a claim can best assess its veracity because, through the debt relationship on which the claim is based, he has more or less intensive relationships with the debtor. However, if a claim - if permissible - to a new creditor assigned (eg in the context of a factoring or forfeiting), the new creditor no longer has any relationship with the debtor. The new creditor acquires a claim to which he actually has no relation and can therefore easily judge neither its existence nor its recoverability. In this case, the legislature burdens this verity risk on the seller, who cannot invoke inability, because the legislator considers the buyer's trust in the purchase of receivables to be more worthy of protection. In the event of an assignment, the previous creditor must therefore prove to the new creditor that the assigned claims actually exist. Evidence is provided by invoices or contracts through which the claims arose or are to be proven and / or through the confirmation of the debtor in the context of the assignment notification ( § 409 BGB), according to which he recognizes the existence of the claim.
Legal issues
However, this acknowledgment of debt by the debtor does not completely eliminate the verity risks. Because the new creditor acquires the claim with all ancillary rights (transfer of full rights; § 401 BGB) and defenses of the debtor ( § 404 BGB). The objections and defenses to which the debtor is entitled, in particular poor performance , contestation , set-off , retention and other rights of refusal of performance (such as debtor default ), are not affected and remain unchanged. The debtor can also assert these defenses against the new creditor.
In the event that a transferred claim turns out to be non-existent, the contracting parties must make appropriate arrangements. It can be agreed that the seller should be liable in the event of fault - or regardless of fault - according to the provisions of § 311a Paragraph 2 BGB ( compensation for damages or reimbursement of expenses); However, there is no guarantee for legal defects of §§ 435 ff. BGB. The buyer is also entitled to withdraw from the contract in accordance with Section 326 (5) of the German Civil Code (BGB) when acquiring non-existent claims.
Verity plays a decisive role in claims because of the impossibility of a bona fide purchase . Because the existence of things can be proven by the owner, they can be acquired in good faith by handover (or handover surrogates), provided that the objects have neither been stolen , lost or lost from the owner ( Section 935 (1) BGB). Claims, on the other hand, are subject to the law of obligations , which does not know an acquisition in good faith. So it can be For example, it may happen that a claim is acquired by way of assignment that does not even exist. This can have various causes, namely either legal (e.g. because it has since been paid) or deliberately faked claims that never existed.
Verity risk at credit institutions
Credit institutions can come into contact with receivables in a variety of ways. On the one hand, this applies to the assignment of receivables as collateral , and on the other hand, your role as a buyer of receivables in leasing , factoring , forfaiting and ABS transactions ( true sale ). The resulting verity risk was defined by law within the framework of German banking supervision . In Section 71 (2) SolvV, the verity risk was described in the SolvV until 2013 as the "risk that exists in terms of the existence and realizability of a purchased claim that the debtor of the purchased claim is not obliged to pay in full." With replacement According to the SolvV based on the European Capital Requirements Directive (CRD), or the Capital Requirements Regulation (CRR), which specifies this legal norm, the verity risk has now been referred to as the dilution risk. According to this, the "dilution risk" denotes the risk that the amount of a receivable will decrease due to cash or cashless claims by the debtor ". The legal definition also includes both the question of the existence risk (does the claim as such actually exist, or has the original debtor possibly already paid it) and its feasibility due to any objections raised by the debtor. If credit institutions cannot prove that this dilution risk [formerly verity risk] is insignificant, the transaction must be backed with equity . The dilution risk [verity risk] is insignificant, for example, if the debtor has admitted the debt. There is no risk of dilution if, in addition to the acknowledgment of debt, there is also a complete waiver of objection by the debtor. This is customary in the market for forfaiting in the public sector .
Demarcation
The verity risk is to be distinguished from the credit risk , which only affects the solvency of a debtor in relation to an existing claim.
Individual evidence
- ↑ Claudia Bannier, The liability problems under the law of obligations and bill of exchange law in the forfaiting of export claims , 2005, p. 39
- ↑ Ulf-Gregor Schulz / Uni Leipzig, The purchase of receivables - Effects of the law of obligations reform in factoring and forfaiting , June 2002, p. 22 (PDF; 133 kB)
- ↑ BaFin, interpretation of the SolvV dated September 28, 2012, request T002N001F001, p. 3 ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.
