Custody (Germany)

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In civil law, safekeeping is the temporary storage of a movable object .

General

In the case of safekeeping, the consigning depositor grants the depositary depository direct possession of movable property for a certain period of time as well as in the case of rent or loan . The custodian takes the items into his custody and provides space for them ( living space , business space , storage room ), whereby he is obliged to return the same items or items of the same type, quality and quantity after custody. Storage can be for a fee or free of charge. Safekeeping can be the main performance obligation typical of the contract , but also a secondary obligation from another contract. The main service obligation is the safekeeping in the safekeeping contract, as a secondary obligation it occurs, for example, in the accommodation contract as a mixed contract , whereby the guest lets the innkeeper keep his cloakroom.

history

Free custody already existed in Roman law ( Latin depositum ). It was one of the real contracts there . On the other hand, custody for a fee ( Latin locatio conductio rei ) was legally equated with rental and lease contracts and was therefore a consensual contract . The custodian did not acquire ownership or possession of these items , but instead became the owner of them without interdict protection ( detentor ). He was only liable if the custodian treated the things to be kept less carefully than his own things. At the end of the storage, the custodian had to return the same thing as when it was loaned ( Latin commodatum ). This type of custody was called regular custody ( Latin depositum regulare ). If, on the other hand, the depositor allowed the depositary to use ( use or consume ) the items to be kept in safekeeping, the safekeeping was transformed into a loan (in Latin depositum irregular ), whereby the depositary became the owner and had to bear the risk of accidental loss . Again, this type of safekeeping was only possible for justifiable items, so that the depositary could return them to the depositor in the same type, quality and quantity.

The Sachsenspiegel from 1235 described the safekeeping as "to behalde dun". The word "Verwarunge" appeared for the first time as Middle High German "Verwarunge" in 1495. The Codex Maximilianeus Bavaricus Civilis of January 1756 mentioned the deposit in an emergency situation ( Latin depositum miserabile ) and also the "depositum irregulare".

The General Prussian Land Law (APL) of June 1794 regulated the safekeeping in great detail and saw in the safekeeping contract the obligation of the custodian to keep an item, to return it in the future (I 14, § 9-108 APL). As in Roman law, the custodian had to exercise the care that he used to exercise with his own property (I 14, § 11 APL); in the case of paid custody, the custodian was liable for "moderate oversight" ( average negligence ; I 14, § 17 APL). The ABGB ( Austria ) and BGB ( Germany ), which are based on the Roman institutional system , regulate the custody contract in detail. The ABGB, which came into force in January 1812, creates the custody contract by taking over a third-party item ( real contract ; § 957 ABGB) and grants the custodian a mere ownership of the kept item (§ 958 ABGB). The BGB, which has been in force since January 1900, does not comment on the type of contract; it is probably based on a consensual agreement.

Legal issues

Custody is the obligation of the custodian, assumed on the basis of a custody contract, to keep a movable item handed over to him by the depositor ( Section 688 BGB ). The custody contract, like the loan, is an imperfect bilateral contract because the depositor's claim to return is the main contractual obligation. According to the prevailing opinion , the custody contract is - unlike in Roman law - a consensual contract through which the custodian gains direct possession of the thing ( § 868 BGB) and the depositor becomes at least indirect owner or even remains owner and becomes indirect owner. In the case of free storage, the custodian is only responsible for the care that he usually applies in his own affairs ( Latin diligentia quam in suis ; § 690 BGB). For incurred expenses of the depositary of the depositor reimbursement of expenses to pay ( § 693 BGB), the right to reclaim the depositor results from § 695 BGB, the Drop the repository is ( § 697 BGB). An agreed remuneration is to be paid at the end of the storage ( § 699 BGB).

In the case of regular custody, the custodian must return the same item upon termination of the custody contract . In the case of irregular custody in accordance with Section 700 of the German Civil Code (BGB), only justifiable objects may be kept because the custodian acquires ownership of them and may use or consume them and is therefore only able to return objects of the same type, quality and quantity to the depositor. The loan law applies to money (only cash ) as an item to be kept in safekeeping ; the loan agreement in kind applies to other justifiable items (Section 700 (1) BGB).

meaning

The most important areas of application in banking today are the deposit business and the custody business of credit institutions . Both transactions are banking within the meaning of the German Banking Act (KWG), deposit business pursuant to Section 1 (1) No. 1 KWG, and custody business pursuant to Section 1 (1) No. 5 KWG.

Deposit business

The deposit business is characterized by the fact that credit institutions accept sight deposits , time deposits or savings deposits from bank customers in unsecuritized form. Since they lend these financial investments as loans , they use (“use”) these funds, so that there is an irregular custody in which the bank customer receives money back of the same type, quality and quantity. Since - with a few exceptions - the loan regulations apply (Section 700 (1) BGB), the credit institutions are the debtors of the deposits and the investors are accordingly creditors . The place and time of the return are based on the safekeeping contract (Section 700, Paragraph 1, Clause 3 BGB), so that the depositor has to collect the money at the place of storage (no obligation to send ; Section 697 BGB) and has the right to reclaim at any time ( Section 695 BGB). All bank deposits consist of book money , so that an interest obligation only arises from the individual banking business and not from § 698 BGB. While the bank customer bears a credit risk when investing as a creditor in the event of bank failure (which is completely or partially eliminated by deposit protection ), he has no such risk in the custody business because, as the owner of the securities, he has a right of segregation in accordance with Section 47 of the Insolvency Act (InsO) .

Custody business

In the custody business, the special provisions of the Depot Act (DepotG) apply to custody , according to which a custodian is deemed to be someone to whom securities are entrusted for safekeeping in the operation of his trade ( Section 1 (2) DepotG). Securities depository banks are approved as central securities depositories in accordance with Section 1 (3) DepotG , and since September 2014 as EU central securities depositories under EU law . A distinction is made between collective custody ( Section 5 DepotG) as a rule and special custody in accordance with Section 2 DepotG, which requires separate storage from the holdings of third parties ( wrapper custody ). As a result, in the case of collective custody, there is a case of regular custody, whereby the depositor is to be delivered from the collective holdings of securities in the amount of the nominal amount , in the case of securities with no nominal amount in the amount of the number of securities taken into custody for him; He cannot reclaim the items he has delivered ( Section 7 (1) DepotG). The depositor therefore does not receive the same items back, but he nevertheless remains their owner.

Further areas of application

Further areas of application of custody are in particular the storage business ( § 467 ff. HGB ), the public-law deposit (e.g. the safekeeping according to § 346 Abs. 1 FamFG ) and the sequestration (e.g. according to § 848 Abs. 1 ZPO ), some of which the provisions on safe custody apply. In accordance with Section 419 (3) of the German Commercial Code (HGB), the carrier may store the freight or have it stored by third parties . Investment companies are not allowed to keep their investment or special assets in custody themselves, but have to give a depositary an order for safekeeping and management ( UCITS : Section 68 KAGB , AIF : Section 80 KAGB, real estate : Section 241 KAGB).

Demarcation

The free safekeeping is also not a favor , because the safekeeping represents the legal obligation from a safekeeping contract, while the favor is a non-binding, non-profit agreement.

See also

Individual evidence

  1. ↑ Carl Creifelds , Creifelds Legal Dictionary , 2000, p. 1479
  2. ↑ Publius Iuventius Celsus , Digest , 16, 3.
  3. ↑ Ulrike Köbler: Werden, Wandel und Wesen des German private law vocabulary , 2010, p. 285.
  4. ^ Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 224 ff (225).
  5. ↑ Publius Iuventius Celsus , Digesten , 16, 3, 32.
  6. ^ Heinrich Honsell, Römisches Recht , 2015, p. 121
  7. ↑ Ulpian , Digest , 12, 1, 9, 9.
  8. ↑ Sachsenspiegel, 1235, III 5 § 1
  9. ↑ Otto Palandt / Hartwig Sprau, BGB commentary , 73rd edition, 2014, § 688 Rn. 3
  10. ↑ Joseföffelholz / Gerhard Müller, Bank-Lexikon: Concise Dictionary for Banks and Savings Banks , 1983, p. 1932
  11. ↑ Dorothee Einsele, Banking and Capital Markets Law , 2006, p. 39
  12. ↑ Georg Opitz, Depotgesetz , 1955, p. 128