Pledging

from Wikipedia, the free encyclopedia

In property law, pledging is the legal transaction of securing a claim by ordering a lien on movable property , rights or claims in favor of the pledgee.

General

The pledge is also a so by law from the outset provided collateral loan or other debt to Legal validity must pledge to be present. The parties involved are the pledgee ( security buyer ), the borrower ( security seller ) or a third, non-borrowing security seller. Given notice of the legal authority is granted to the pawn use when the secured debt due and is wholly or partially not paid ( deposit maturity ).

Legal bases

The contractual lien on movable property comes about through an agreement on the assignment of the pledge and the necessary handover of the property from the collateral provider (who remains the owner ) to the collateral taker (pledgee) ( § 1205 BGB ), the latter thereby becoming the owner . As handover substitute the assignment or pledge are of the claim for ( § 1205 , para. 2 BGB) or the grant of co-ownership ( § 1206 permitted BGB). If indirect ownership is transferred instead of handover, notification to the immediate owner is required ( Section 1205 (2) BGB). However, Section 1206 of the German Civil Code (BGB) allows pledging to be sufficient by granting (indirect or direct) co-ownership. A constitution of possession, on the other hand, is excluded (unlike the silent deposit in the Netherlands, for example ). The ownership entitles the pledgee to the recovery of the Secured if the debtor violates his payment obligations and the demand is (due § 1228 para. 2 BGB).

A (credit) claim to be secured does not yet need to exist ( Section 1204 (2) BGB), but it must be customizable at the time the lien is established according to the reason for it (not the amount). This claim does not have to exist against the security provider; a lien can also be created for a claim against a third party. The collateral provider must either be the owner of the pledged item or authorized to pledge it. If the security seller is not authorized, the provisions on the acquisition of property in good faith apply to the legal lien according to § 1207 BGB (with the exception of § 933 BGB).

The strictly accessory lien, i.e. dependent on the existence of a claim to be secured ( § 1210 Paragraph 1 BGB), which can only be ordered on individual items ( specialty ), entitles the security buyer to realize the pledged item under certain conditions. For the duration of the pledge, the collateral taker must keep the item for the collateral seller ( Section 1215 BGB).

Types of pledge

In the pledge of movable property and bearer securities which is handing over necessary to be legally valid. If the collateral taker is already the immediate owner in the case of pledging, either the mere agreement on the lien ( Section 1205 (1) sentence 2 BGB) or the granting of joint ownership ( Section 1206 BGB) is sufficient . The assignment of the surrender claim is possible as a substitute for transfer ( Section 1205 (2) BGB).

Claims and rights can only be effectively pledged if the third party debtor receives notification of pledge ( Section 1280 BGB). The notification of the pledge is a non-mandatory prerequisite for the validity of the lien that must be received. This is the last partial act of the legal origin. The right of lien does not become effective with the pledge, but according to § 1280 BGB only with the notification of it. The sender bears the burden of proof for the fact and time of receipt of a declaration. The content of the pledge notification is based on the third-party debtor's declaration of Section 840 (1) No. 1 to 5 ZPO , to which it is legally related. The third party debtor must submit the following confirmations in it:

  • He has taken note of the pledge of the specifically designated claim and
  • he will respect the pledge and
  • Priority / equal rights of third parties do not exist and
  • he will not apply the terms and conditions if the third party debtor is a credit institution .

It is not enough for the third party debtor to point out that he has reserved the notification of pledge. This mere note "noted" means nothing more for the pledgee than that the third-party debtor hereby confirms that he will observe the pledgee's right of pledge in the event of disbursements and not want to make payments to this or the obligee himself without the pledgee's consent. However, it cannot be inferred from this that the obligee himself or other pledgees did not have priority rights to be satisfied with regard to this claim. Therefore, the 4 specific confirmations above must be obtained.

The use pledge ( § 1213 BGB) rarely occurs in finance and allows the pledgee to use the fruits of the pledged item, such as the collection of the credit interest of a pledged savings credit or the dividend of pledged shares to cover the debt service in a Lombard loan .

Pledging in practice

The most common form of pledging takes place within the framework of credit protection by credit institutions and with pawn shops . As collateral, credit institutions usually pledge all types of bank balances (even if they are held with other credit institutions), securities or precious metals on the basis of standard lending limits . These tend to be higher with credit institutions than with pawn shops , because less fungible things are often pledged with the latter. The valuation takes place by a safety assessment rather than that initially the collateral value determined.

shape

The law does not provide for any special form for pledging contracts , but they are concluded in written form , especially for reasons of evidence ( Section 127 BGB). The exact description of the pledged objects or rights must be observed. There are no special formal requirements for the pledging of movable property. In the case of claims and rights, the respective form that would be required for the assignment of the right must be observed ( § 1274 BGB).

In the case of securities , the form of transfer of the respective security type must be observed. The provisions on the pledging of movable property ( § 1293 BGB) apply to bearer papers , § 1292 BGB ( pledge or full endorsement , transfer) applies to order papers , recta papers are pledged in accordance with § § 1273 ff. BGB (the claim documented therein is to be pledged ; “The right to the paper follows the right from the paper”). If the pledging of shares in accordance with Section 68 (2) sentence 1 AktG is dependent on the approval of the stock corporation , this must be observed.

Special forms

A special form is the group of qualified identification papers, the legal nature of which is regulated in § 808 BGB. In the practice of pledging, the savings book and the (life) insurance policy are most common when pledging.

Pledging of savings (cash register) books

Like the other papers according to § 808 BGB and the documents according to § 793 BGB, the savings book is a security. As such, it certifies a service and opens up the possibility of receiving it even without objective authorization. The legitimation effect of a savings account only extends to the services legally promised by the issuing bank . The (unauthorized) passbook holder can therefore only dispose of the securitized claim as promised. The promised service includes all cash payments that do not require termination by the saver. According to Section 808 (1) of the German Civil Code (BGB), a credit institution is therefore not released by a service to the book owner if it pays out beyond the cancellation-free amount for savings deposits with statutory notice, in deviation from the “General Savings Conditions” without notice. According to the savings conditions, the issuing bank is entitled, but not obliged, to make payments due to each person presenting the savings book . The (unauthorized) owner of a savings account can only make declarations of intent for the creditor of the savings credit that are necessary to receive the promised benefit. Only the obligee is entitled to change the contract outside of the promised performance. The promised service does not include the payment of a savings credit before the due date, the payment in excess of the contractually guaranteed maximum monthly amount and payments if the blocking note is entered. Compliance with statutory notice periods is therefore part of the “promised service”, so that early payments are not covered by the legitimation effect of the savings book. Thus, the promised performance does not extend to the amounts, the payment of which requires a termination by the obligee. If a bank pays the unauthorized owner of the savings book as part of the promised service, this also has the effect of discharging the debt vis-à-vis the obligee, unless the lack of authorization was known or unknown through gross negligence.

The cited BGH judgment of November 1958 was based on a case in which the mother had withdrawn more than the amount free of notice from her daughter's savings account. This usually requires a termination, which, however, only the daughter as the creditor of the savings credit was entitled to. Since the bank was also positively aware of the mother's lack of entitlement, she did not pay with the effect of discharging the debt and had to reimburse the daughter for the amount of the payment that exceeded the promised benefit.

Insurance policy pledging

The legal nature of the insurance policy is only imperfectly regulated in the Insurance Contract Act (VVG). The provision of § 4 VVG only prevents the insurance policy from being designed as a pure bearer paper. With the insurer contractually granted permission to each holder of the insurance policy to pay with discharging effect, but without this opposite to be obliged to pay, the insurance policy is a qualified legitimacy paper within the meaning of § 808 BGB. In addition, the insurance is declared to be entitled to view the holder of the certificate as being entitled to other dispositions of rights from the insurance contract. The legitimacy effect of Section 808, Paragraph 1, Clause 1 of the German Civil Code (BGB) extends to the contractually promised services. On the other hand, a qualified legitimation document does not give the holder the right to make declarations of intent that are only binding for the creditor of the documented law. Only insofar as declarations of intent are required to receive the services promised in the certificate, the holder of the certificate can also submit them, because otherwise the legitimation effect of the certificate would be invalid. Contractually promised performance is at a life insurance but not only the power of the sum insured in the insurance case . The performance of the surrender value after termination of the contract is also contractually promised ( § 169 VVG). Because the right to the surrender value is just another form of the right to the sum insured. Accordingly, the legitimation effect of an insurance policy as a document in the sense of § 808 BGB also extends to the right of termination in order to obtain the surrender value. The insurance company can therefore regard the holder of the insurance policy as entitled to terminate according to Section 808 of the German Civil Code (BGB) if he or she seeks to pay out the surrender value.

The pledging of savings balances or rights from life insurance only becomes effective after notification of the pledge to the third party debtor (bank, insurance company) ( Section 1280 BGB). The third party debtor becomes aware of the pledge through the notification. He may therefore not pay the (unauthorized) presenter of the documents with the effect of discharging the debt. For the pledge to be effective, the transfer of the savings account or the policy to the collateral taker is neither necessary nor sufficient. In the event of liquidation, however, the collateral taker can only demand payment from the debtor of the savings account or the policy on presentation of the document, despite the notification of pledge, because the issuing debtor contractually makes payment dependent on the presentation of the document. For this reason, savings books and policies are to be handed over to the collateral buyer when the pledge agreement is concluded.

Claims and rights

When receivables are pledged, the form of transfer must be observed as with their assignment ( Section 1274 (1) sentence 1 BGB). While a patent may be transferred informally ( § 15 , para. 1, sentence 2 of the Patent Law ), of the must, the transmission business share a GmbH notary certified be ( § 15 , para. 3 GmbH Law ). The pledging of GmbH shares is therefore also subject to notarization.

AGB lien

The contractual liens also include the so-called general terms and conditions lien of the credit institutions from their general terms and conditions . With this lien resulting from No. 21.1 AGB-Sparkassen or No. 14.1 AGB-Banken, the credit institutions want to obtain a contractual lien in the case of unsecured claims against a bank customer on available valuables in the future. The valuables do not need to be specifically determined at the time the general terms and conditions lien is ordered, but must be owned by the bank customer. It is important that the accounts receivable from the customer must have arisen in the form of a bank (i.e. in addition to the original justification through credit agreements, also “tolerated” account overdrafts ). The agreement required for the creation of the AGB lien according to § 1205 , § 1274 BGB takes place with the acknowledgment of the AGB when opening the account . To assert this, the credit institutions must prove a legitimate interest in security. A cover limit and a release clause are not required - as is usually the case with loan collateral in banking.

scope

The AGB pledge clause consists of the claim and the collateral level. The reason for the debt is sufficiently determined if reference is made to existing and future claims that may arise from a defined group of legal relationships. This is described in sufficient detail with the term business relationship , which is explained in more detail in the following half-sentence “in particular from current accounts and from the granting of loans of any kind”. To acquire the assets, possession or the power of disposal of a legal or factual nature is sufficient. This includes bearer papers and other moveable items, unless they are kept in a safe (closed depository) rented from the credit institution asserting the general terms and conditions lien . The general terms and conditions lien also does not extend to order and recta papers, because in order to transfer the securitized right, in addition to agreement and handover, other requirements such as an endorsement or assignment must be met. Domestic and foreign securities stored abroad are also not recorded. All claims of the customer against the bank itself or against third parties are subject to the general terms and conditions lien, insofar as his power of disposal extends to it. Of particular importance are the non-earmarked (No. 21.2 AGB-Sparkassen / No. 14.3 AGB-Banken) balances from current , time deposit and savings accounts (lien on own debt) held with the institution concerned. As the debtor of this, the bank can waive a notification of pledge in accordance with Section 1280 of the German Civil Code.

If the formal prerequisites for asserting the general terms and conditions lien have been met, you must still be eligible for lien . Mortgage maturity is when the bank delinquencies has against its customers, in whole or in part, the deadline to be met. If there is a corresponding need for security, a bank can exceptionally make use of its general terms and conditions lien on the claims of a customer from an account balance even before the deposit is ready by no longer allowing the customer to dispose of them to secure later utilization ("account lock"). If the bank allows the customer to dispose of his account balance, it releases its lien to that extent.

The rank of the lien depends on the time of its appointment, so that the lien of the credit institution takes precedence over the lien of a third party ordered later, even if a claim to be secured by the credit institution arises only afterwards ( Section 1209 , Section 1204 Para. 2 BGB).

effectiveness

In the context of the literature and case law on § 307 BGB, the general terms and conditions lien is one of the critical clauses . The effectiveness of the pledge clause in the General Terms and Conditions is recognized in case law and specialist literature . It is generally permissible, even if it includes future claims. According to the rulings of the Federal Court of Justice, the pledge clause of the General Terms and Conditions is to be interpreted in such a way that the security only relates to claims from the banking business relationship and to claims acquired through banks.

Impairments

Rights or claims can only be pledged if they can also be pledged ( Section 1274 (2), Section 400 BGB). However, claims that are not subject to foreclosure are just as unsuitable for pledging as they are for assignment. This also applies to claims that cannot be assigned.

In the case of pledging of movable property, a bona fide lien acquisition by the security buyer is possible due to the direct acquisition of ownership ( § 1207 BGB). The regulation refers to the provisions of the BGB on the purchase of movable property in good faith . The collateral taker must therefore not be aware of the pledger's ineligibility or be unknown due to gross negligence . The collateral taker acts in grossly negligent ignorance if he violates the required due care to an unusually high degree by ignoring suitable sources of knowledge, although he is aware of suspicious circumstances. If the movable property to be pledged has been stolen from its owner , has been lost or is otherwise lost , a bona fide lien acquisition is excluded. In the case of receivables pledging, the collateral taker has to get an exact picture of the authorization of the pledger as with the assignment, since it is not possible to acquire receivables in good faith.

If bearer securities are pledged that have yet to be handed over to the collateral buyer, no purchase in good faith is required if the collateral buyer is a credit institution. In Section 367 (1) of the German Commercial Code (HGB), credit institutions are subject to special audit obligations, according to which the purchase of a pledge in good faith is excluded if the loss of the security was announced in the Federal Gazette at the time of the pledge. The case law requires banks to comply with particularly high due diligence requirements . Even if the loss was not made public, a bank must be suspicious of high-volume over-the-counter transactions .

The buyer of security also incurs duties of care from his duty of safekeeping. He must therefore present a pledged bill of exchange to the drawee in good time for acceptance ( Art. 21 , Art. 22 WG ) and create the conditions for recourse ( Art. 44 WG). The pledger must be notified of any impending deterioration in the pledged item ( Section 1218 (2) BGB). However, the collateral taker has no obligation to ensure that the value of pledged shares is maintained.

If bank balances or securities of spouses are pledged, the security buyer must examine the problem of disposal over the entire property . The prerequisites exist if the value of the assets or securities to be pledged exceeds 85% of the total assets of the spouses living in a community of gains . Then, in addition to the signature of the pledger, the consent of his spouse is required. In the case cited, a husband had pledged securities to his bank as collateral for loans to his bank without his wife's consent . Therefore this pledge was ineffective according to § 1365 BGB . The problem of disposing of the entire property also applies to cases in which a spouse pledges securities or credit balances as security for loans to third parties as a mere security provider without the consent of his spouse.

Pledging ban

Neither can non-assignable rights be pledged ( Section 1274 (2) BGB). In particular, non-attachable remuneration can not be pledged . There are three types of non-attachable income:

  • absolutely non-attachable remuneration ( § 850a ZPO). These are benefits that are paid as an incentive for continued employment or as a reimbursement of expenses;
  • Conditionally attachable remuneration , which can be attached if the execution in the other movable property of the debtor has not led to a complete satisfaction and the attachment is equitable ;
  • Relatively attachable emoluments ( § 850c ZPO), which includes other income from work.

Are absolutely non-attachable u. a. Anniversary payments ( § 850a No. 2 ZPO) as well as marriage or obstetrics ( § 850a No. 5 ZPO). Furthermore, social welfare benefits are not attachable , unless the loans taken out in advance of social benefits are to be secured with them ( Section 53 (2) SGB ​​I ). Parenting , maternity or disability benefits ( Section 54 SGB ​​I) and child benefit ( Section 54 (5) SGB I) are also absolutely non-attachable and therefore not pledging . Limited pfändbar are unemployment benefits , short-time work or seasonal short-time allowance ( § 54 SGB I). For transfer to a checking account as these services were for a period of 14 days (since July 1, 2010) since credit exempt from attachment, then began Pfändbarkeit and thus also Verpfändbarkeit. Since January 1, 2012, seizure protection has only been available via a P account (Section 55 SGB I old version has been removed). Since then, it no longer matters where the credit on the P account comes from. It is therefore irrelevant, for example, whether the credit on the P account is due to income from self-employment, an employee activity or social benefits ( Section 850k ZPO).

Recognition under banking supervisory law

Pledges occur exclusively as credit security ("born loan security"), with the focus on the mortgage lending value of the pledged property or rights.

General

Since January 2014, credit collateral has been considered a credit risk mitigation technique for regulatory purposes . If credit collateral is recognized as a credit risk mitigation technique by the Capital Adequacy Regulation (CRR) applicable in all EU member states , it leads to a lower level of equity capital for credit institutions compared to blank loans . As a result, secured loans can be granted up to the lending limit with a more favorable interest rate .

Pledges belong to the credit risk mitigation techniques “with security deposit ” ( real collateral ; Art. 4 Para. 1 No. 58 CRR). Art. 194 CRR establishes principles for the supervisory recognition of credit risk mitigation techniques, after which loan collateral in particular in all jurisdictions legally (English valid ) and enforceable (English enforceable must be) sufficiently liquid , over time a stable value and a credit event promptly recyclable need to be. The positive correlation between the collateral and the borrower's creditworthiness must not be very high (Art. 194 (4) CRR). A legal risk is in doubt by legal opinion ruled out.

Pledges

The CRR refer to real collateral as financial collateral . They are listed in Art. 197 CRR:

This financial collateral is recognized as a credit risk mitigation technique in accordance with Art. 207 CRR if

Art. 210 d CRR requires that the loan agreement contain comprehensive information on the type and frequency of the revaluation in the case of other physical collateral . Art. 224 (1) CRR requires a volatility-oriented reassessment of the collateral, in extreme cases (e.g. for shares) on a daily basis. If the pledges do not meet these regulatory requirements, they are classified as unsecured loans.

Extinction of the lien

As an accessory right, the lien expires “with the claim for which it exists” ( § 1252 BGB). If the loan is finally repaid and a legally effective extension of the pledge to other claims than the original (loan) claim is not possible, the pledge expires by law. Then the pledged objects are to be returned or transfer surrogates to be reversed.

Despite the persistence of the claim, the lien expires if the security buyer cancels it ( Section 1255 BGB), the security buyer acquires ownership of the pledged items (e.g. through purchase) ( Section 1256 (1) BGB) or if he returns the pledge to the pledger or owner ( Section 1253 (1) BGB). The return must be voluntary and not only temporarily, to the pledger or owner; Returning it to the debtor different from the owner does not invalidate the lien.

The law irrefutably presumes an expiry of the lien if the pledged property is in the possession of the owner or a third party ( Section 1253 (2) BGB). After the lien has expired, the pledger has the right to reclaim the pledge from the collateral taker ( Section 1223 (1) BGB).

See also

Individual evidence

  1. ↑ Art. 3: 237 BW - BW - Article 237 Burgerlijk Wetboek Boek 3 :: Maxius.nl voorheen Lexius.nl. In: maxius.nl. Retrieved December 11, 2018 .
  2. ↑ BGH ZIP 1998, 257
  3. ↑ BGH, ZIP 1998, 257
  4. ↑ BGHZ 70, 232, 234
  5. ↑ BGHZ 28, 368, "Daughter's savings book"
  6. ^ BGH WM 1990, 2067
  7. ↑ a b c d BGHZ 28, 368
  8. ↑ a b c d BGH NJW 1975, 1507
  9. ↑ a b BGH WM 1988, 1478
  10. ↑ BGHZ 42, 302
  11. ↑ BGH NVersZ 1999, 365
  12. ↑ BGHZ 45, 162
  13. ↑ BGH NW 1995, 375, 377
  14. ↑ BGH NJW 1992, 896
  15. ↑ Reason: lack of possession, but then landlord's lien according to § 562 BGB, which is limited to the locker rent due
  16. ^ BGH, judgment of February 12, 2004, Az .: IX ZR 98/03
  17. ↑ BGH WM 1988, 859
  18. ↑ a b BGH NJW 1985, 849
  19. ↑ RGZ 77, 11
  20. ↑ BGH NJW 2000, 1947
  21. ↑ Thorsten Gendrich / Walter Gruber / Ronny Hahn (eds.), Solvency Handbook , 2014, p. 169 FN 16
  22. ↑ Thorsten Gendrich / Walter Gruber / Ronny Hahn (eds.), Solvency Handbook , 2014, p. 172