Assignment (Austria)
Assignment or cession (from latin cessio ) referred to in the Austrian civil law according to the legal definition in § 1392 of the Austrian ABGB the transmission of a request from the transmitting creditor ( assignor ) to a receiving creditor ( assignee ), the then new creditors. The assignment takes place by means of a contract between the assignor and the assignee.
Claims (for example the claim for loan repayment) are things in the sense of § 285 ABGB , specifically intangible things (according to § 292 ABGB). As a (tangible) movable thing is sold and then transferred by handover or a (tangible) immovable thing is sold and then transferred by registration in the land register , a claim (i.e. an intangible thing) can be sold and then transferred by assignment. The assignment is thus such transfer or land register entry a disposal business (mode), the result of an acquisition or sale (for example, purchase , donation , security agreement ) is completed.
The assignment is carried out by concluding the transaction. There are no formal requirements. The notification of the debtor is basically only declarative, but without notification he can (still) discharge the debt to the old creditor. In the case of security assignment, due to the similarity to the lien, a constitutive agreement of the debtor is required . In any case, the debt remains the same and the debtor is entitled to all the objections that he had against the old believer. The debtor must not be in a worse position than before the assignment (§ 1394 ABGB). The assignor guarantees the assignee that the claim is correct and collectible.
In case of doubt (unless otherwise agreed), the assignment also includes ancillary rights ( e.g. lien , guarantee ). According to the prevailing doctrine (Koziol / Welser), however, the property law mode (e.g. transfer) must be adhered to in the case of lien. Since property itself is not an ancillary right to the claim, the transfer of a retention of title requires a separate act, namely a possession instruction (the debtor is instructed to hold the thing for the assignee and no longer for the assignor).
According to § 1393 ABGB, all alienable rights, i.e. mandatory rights, are assignable. Real rights (for example property) cannot, of course, be “assigned”; the property law rules apply to them. Highly personal rights (e.g. maintenance claims) cannot be assigned. Statutory bans on assignment also apply to the right of repurchase , for example .
See also
- Assignment (disambiguation page)
