Transfer of contract
The transfer of a contract (also known as contract transfer ) refers to the entry of a new person (with the simultaneous departure of another person) into an existing contract . The entering party takes over the entire contractual legal status of its predecessor.
The transfer of the contract itself takes place either on the basis of a statutory order or with the consent of all parties involved in the contractual relationship. The transfer agreement is to be distinguished as a sui generis contract versus the assignment and assumption of debt .
Transfer of contract by law
Legally regulated cases of contract takeover are § 566 BGB , according to which the purchaser of rented living space replaces the original landlord, also § 613a BGB in the case of a transfer of business or about § 95 VVG in the case of the sale of an insured item. The heir also enters into the contractual relationships of the deceased testator by law as part of a universal succession under inheritance law.
The contractual transfer of the contract
When a contract is taken over by contract, the three persons involved conclude a contract with the content that the person entering replaces the person leaving as a party to the contract taken over. A distinction must therefore be made between the transferred contract and the transfer contract.
The transfer agreement must be concluded by all three people; From a legal point of view, the takeover contract can be concluded either through a tripartite contract or a bilateral contract between the departing and the newcomer with the consent of the remaining part.
Formal issues and consumer protection
Whether the takeover contract has to be concluded in a certain form depends on whether the taken over contract itself is subject to a legal form. If the takeover contract is concluded by way of the consent model, consent can be given in accordance with Section 182 (2) BGB .
The takeover agreement can also be subject to special consumer protection provisions. In the practically significant cases of taking over a consumer loan contract or installment delivery contract , the takeover contract is viewed as if it itself belonged to the named consumer contracts, so that the provisions on the consumer credit written form, the disclosure requirements and the right of withdrawal apply to the takeover agreements. The prerequisite is that the incoming part and the remaining part fall within the personal scope of the consumer protection provisions ( consumers or start-ups on the one hand and entrepreneurs on the other), and furthermore that these two people also conclude the takeover contract with each other - this is not the case, mind you the takeover agreement is in the form of the consent model.
literature
- Dominik Klimke: Taking over the contract , Freie Universität Berlin, habilitation thesis 2008/09, Mohr Siebeck, Tübingen 2010, ISBN 978-3-16-150154-8 .
- Knut Wolfgang Nörr , Robert Scheyhing , Wolfgang Pöggeler: Successions: Claims assignment , contract transfer , debt transfer , Mohr Siebeck, Tübingen 1999, ISBN 3-16-145954-7 .
