Traditional paper
Tradition papers are in Germany securities mentioned that a claim for any moving things securitize and at the same time replace the thing itself in such a way that about them by handing the paper has to be. In terms of commercial law , they are among the approved order papers .
General
The term “traditional papers” is misleading because it can be assumed that they could have something to do with tradition in the general meaning of the term. Although both are based on the same Latin verb for handover ( Latin traditio ), traditional papers mean the right to delivery of goods that can be transferred by handing over the paper ( English trade ). They are also used as disposition papersbecause they make it possible to dispose of the securitized goods. The traditional paper distinguishes itself from the other selected order papers in that, in addition to the effects under securities law , they also have effects under property law .
Legal bases
Securities generally represent a monetary or property right . In the case of traditional papers, this property right consists specifically of goods. As approved order papers, they represent floating or stored goods, provided that these goods are at least indirectly in the possession of the carrier , carrier or warehouse keeper . The traditional effect therefore requires that the carrier or warehouse keeper has taken over the goods, i.e. has at least become an indirect owner. Order papers are characterized by the fact that they represent the monetary or property law evidenced by them. Anyone who is the legal owner of the certificate has a claim to the issuer of the certificate to perform the documented right.
The term traditional paper is used by law as a legal definition , because § 448 HGB speaks of the loading note that the "handing over of the loading note to the person whom the loading note legitimizes to receive the goods, if the goods have been taken over by the carrier for whom Acquisition of rights to the property has the same effects as the transfer of the property. "
species
The types of traditional papers are finally listed in the law. From a legal point of view , these are commercial instructions , including the loading note ( Section 443 HGB), even if it is not placed on order, the bill of lading ( Section 515 HGB) and the order warehouse receipt ( Section 475c HGB), each in conjunction with Section 363 HGB . The loading note is proof in German freight law (e.g. in inland shipping ) that the carrier has accepted certain goods for transport. The bill of lading proves that the carrier has accepted certain goods for transport at sea. In turn, the warehouse receipt proves the incorporation of certain goods in a public warehouse .
Transfer and enforcement
As (selected) order papers, these traditional papers have a specific name. This beneficiary is initially only entitled, as the owner , to demand that the owner (shipper, carrier or warehouse keeper) return the goods documented in the document upon presentation of the document.
In their function as (selected) order papers, they can be lawfully transferred to a new purchaser through an agreement in rem , endorsement and handover of the paper. The new purchaser is then by law not only the owner of the document, but also automatically the owner of the corresponding goods. By presenting the document, the owner can demand that the shipper, carrier or warehouse keeper surrender the goods in their possession ( Section 985 BGB ). The owner is only obliged to check the external form of the endorsement, which has to be done by checking the integrity of the endorsement chain. If the positive order clause is missing , the traditional papers are to be treated like recta papers . This can occur in particular with the warehouse receipt and the bill of lading, so that a transfer is only possible through agreement , assignment and handover.
The traditional effect exists regardless of whether the bill of lading or loading note is designed as order or recto paper ; only in the case of order warehouse receipts is it necessary to have the traditional effect that they have been issued by a warehouse authorized to issue them.
With the obligation to deliver the transported goods to the respective authorized holder of the traditional document, the carrier, shipper or warehouse keeper acknowledges the ownership of the owner.
If the property was stolen from the owner , lost or otherwise lost, it is not possible to purchase the property in good faith by handing over the paper in accordance with Section 935 (1) BGB. Acquisition of ownership of the lost traditional paper in good faith is only possible if the goods were not lost ( Section 365 (1) HGB in conjunction with Art. 16 (2 ) WG ).
literature
- Adolf Baumbach : Commercial Code. With GmbH & Co., trade clauses, banking and stock exchange law, transport law (without maritime law) . Edited by Klaus J. Hopt and Hanno Merkt . New edition with reformed accounting law (BilMoG) as well as taking into account the ARUG, SchVFalschberG, VorstAG, Payment Services Implementation Act and many others 34th revised and expanded edition. Beck, Munich 2010, ISBN 978-3-406-59034-4 , ( Beck's short comments 9).
- Carl Creifelds : Legal dictionary = Creifeld's legal dictionary . Edited by Klaus Weber. 19th revised edition. Beck, Munich 2007, ISBN 978-3-406-55392-9 , keyword: traditional paper (and other words such as order paper , securities , warehouse receipt , bill of lading and bill of lading ), (Parallel CD-ROM edition was published).
- Robert Darreye: The material effect of traditional commercial law papers . R. Noske, Borna-Leipzig 1907, (Heidelberg, Univ., Jur. Diss., May 4, 1907).
- Ernst Heymann : The real effect of traditional commercial law papers . In: Festgabe for Felix Dahn on his 50th anniversary as a doctor . Dedicated by current and past members of the Wroclaw Faculty of Law. Volume 3: Law of the Present . Marcus, Breslau 1905, pp. 135 ff., (Also Separatum).
Individual evidence
- ↑ Lutz Sedatis: Introduction to Securities Law , 1988, p. 183 ff.
- ↑ Hans Josef Wieling: Matters Law , 2007, p. 114 ff.
- ↑ a b Hans Jürgen Abraham: Das Seerecht , 1974, p. 172.
