Assignment in advance

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The assignment in advance (also advance assignment ) is the assignment of any future claims .

General

For an advance assignment to be effective, it is not necessary that the claim, i.e. a debt-related claim , already exists or is even due. It is sufficient that at the time of the assignment according to § 398 BGB there is the possibility of the claim arising. In addition to being uncertain, assignments in advance can also relate to certain times of origin. Thus, future claims can also be limited claims, claims that are subject to a time limit according to § 163 BGB.

The main application cases of the assignment in advance relate to the assignment of security , as it occurs in connection with credit transactions, and to the extended retention of title , which is mostly important in the context of authorization in the manufacturing industry.

Development history

The assignment of future claims was already largely recognized in common law , i.e. in the time before the BGB came into force. There were no legal regulations. The view of the assignability of future claims was primarily represented by the case law of the Reichsgericht . The enactment of the BGB did not give the court any reason to deviate from this position. In the opinion of the court , the principles of the right of assignment developed by the “fathers of the BGB” did not conflict with its own legislation. The admissibility of the advance assignment could be based on the fact that a claim was assignable under any condition , thus also its origin. What was decisive, however, was that the assignment only became legally effective when the claim arose.

The legal literature, however, discussed the legal institution of the advance assignment controversially. Very few dissenting voices completely denied her the right to exist. Other opinions demanded at least sufficient determinability of the claim, condensed to such an extent that at least one entitlement existed at the time of the agreement . This came into consideration in the case of claims with suspensive conditions or old, for example deferred, claims or claims that arose from existing obligations (such as future rent claims ). In this respect, the literature recognized not only assignments in advance as a phenomenon of economic necessity, but also found justification in the fact that the strict property law standards that made a transfer of ownership necessary were absent due to the lack of a transfer object. Some based the admissibility of the advance assignment on an analogous application of the disposal rules of an unauthorized person in accordance with Section 185 (2) sentence 1, 2nd case BGB. Within the prevailing opinion in the literature, the reasons for the admissibility of the advance assignment differed. With regard to § 406 ff. BGB, it was demanded on the one hand that the claim should first arise from the assignor despite the assignment and then immediately pass to the assignee (transitory acquisition). The preconditions for an advance assignment would therefore have to be present with cedants. On the other hand, it was argued that the assignee would intervene in the assignment of the assignor (direct acquisition), so that the claim would arise from the assignee.

Today, the assignability of future claims is generally recognized, even in the event that an effective legal basis has not yet been established. In its decision of March 20, 1997, the IX. Civil Senate of the Federal Court of Justice to deal with the authority to dispose of the advance assignment. He came to the conclusion that sales bans that had come into effect in the meantime led to the assignor's lack of power of disposal, which, however, was no longer relevant, since the advance assignment only had to be based on the last partial act of the transfer, which was the assignment and the claim no longer arises belong to it.

literature

  • Andreas Hiemsch: The collision of advance assignments in the case of global assignment, extended retention of title and factoring , University of Gießen, dissertation, 1991.
  • Hans-Wilhelm Kötter: The suitability of the advance assignment as a means of securing money and commodity credit: with special consideration of the case law of the Federal Court of Justice , series of publications: Publications of the Institute for Banking and Banking Law at the University of Cologne: Legal series 1. , Knapp, Frankfurt a. M. 1960,

Remarks

  1. ^ Bernhard Windscheid , Theodor Kipp : Textbook of Pandektenrechts , 9th edition, 1906, § 335, fn. 12 with further references
  2. ↑ See RGZ 55, 334.
  3. ↑ RGZ 92, 238 ff. (239); 136, 100 ff. (102); 74, 416 ff. (418).
  4. ↑ Reinhard Bork : The power to dispose of the advance assignment . In: Reinhard Zimmermann u. a. (Ed.): Legal history and private law dogmatics. CF Müller, Heidelberg 1999, pp. 289-305 (296).
  5. ^ RG in JW 1913, 132; see. also BGH NJW 1955, 544.
  6. ↑ Max Ernst Eccius DJZ 1904, p. 53 f .; Ernst Straus: Is it possible to assign future claims under the German Civil Code? . In DJZ 1903, p. 342 .; Alfred Bergk: Transfer and attachment of future rights with special consideration of the case law of the Reichsgericht 1912, p. 69 f.
  7. ↑ Representing several: Paul Oertmann : Commentary on the Civil Code and its subsidiary laws , Volume 2: Law of Obligations , 5th Edition, 1928, p. 444; Andreas von Tuhr : The General Part of German Civil Law , Volume II / 1, 1914, p. 388.
  8. ^ Andreas von Tuhr : The General Part of German Civil Law , Volume II / 1, 1914, p. 387 f .; Helmut Heinrichs in: Palandt , Commentary on the Civil Code , 57th edition, Verlag CH Beck, Munich 1998, ISBN 978-3-406-55266-3 , § 398, Rn. 11.
  9. ^ About everything: Paul Oertmann: Commentary on the Civil Code and its subsidiary laws , Volume 2: Law of Obligations , 5th Edition, 1928, p. 445; Motives for the draft of a civil code for the German Reich. 5 volumes, published by J. Guttentag (D. Collin), Berlin / Leipzig 1888: Prot., 763 ff. = Benno Mugdan , Mot. II = Volume II: Law of Obligations. Digitized via archive.org ; Different view: Heinrich Siber , in Planck’s Commentary on the Civil Code , Volume II / 1, 4th edition, 1914, p. 556.
  10. ↑ cf. instead of all: BGHZ 135, 140 (144) = NJW 1997, 1857.