Dedimus potestatem
Under the delegations (Latin for " Money Order " ) was understood in classical Roman law, a statement or authorization.
Definition
The delegations, as a legal term in the Code of Obligations, has its original meaning in the word " delegare ", which is derived from the " legare " ( = send as envoys to make legate ) results. The term delegare in turn develops a double meaning, once " transfer, assign, delegate, entrust, send " in allusion to legare in a general sense with the meaning and in a more technical use in the legal sense " instruct instruct transfer ". This special meaning in the legal language evolved from the general usage initially more common and eventually found mainly law of obligations as " delegations " collection (besides procedural and tax uses).
Besides delegare be in different sources even the terms " iubere " and " mandare " in the sense used by direct or authorize.
Basic idea
When delegations is fundamentally about a simplified system of debt settlement in a three-person relationship. By an act two bonds are extinguished. The people here are involved in each case: an instructional ( Delegant ) An instructed ( delegate ) and a payee ( Delegatar ).
Legal relations of the parties
Between the persons referred to various legal relationships arise:
Coverage ratio ( Delegant - Delegate ) The statement of delegating is covered (usually ) by a fault of the delegate.
Redemption ratio ( delegate - Delegatar ) In this relation is in fact made.
Value relationship ( Delegant - Delegatar ) In this relation, the value shift is taking place.
Applications
Within the delegations, there are two different use cases: The payment ( delegations solvendi ) and the incurrence of a liability ( delegations obligandi ). For the latter, an attempt was made to them as the "real delegation " to explain, but this failed due to the lack of regular source of justification.
Delegations solvendi
In the payment order ( delegations solvendi ) the delegate pays to the Delegatar to be freed in the normal case of its debt to the delegating. As a condition that the delegate of the debtor of delegating is. If the Delegant aims again to settle his own debt with the Delegatar (which is why he authorized the delegate ) must be the Delegatar his creditors. This is not the case, yet is still delegations solvendi possible, for example in the field of donation, what no obligation presupposes.
It thus appears that the basic idea (see above) mentioned simplification of the debt settlement product, as a power takes the place of two necessary payments ( Delegant to Delegatar and delegate and Delegant ) ( delegate to Delegatar ), the void brings both bonds (value - and coverage ratio by paying the redemption ratio done). This new demand usually led it to pay off the old and thus has the Novation result.
According to the prevailing opinion of the high classic Celsus has placed in this context, the theory that the payment of delegate to Delegatar actually has a paying delegate to Delegant and then Delegant to Delegatar. Although controversial is that Celsus have set up this so-called " continuity theory " it is still considered an important example of the intellectual figure of legal seconds (see Wieacker in FS Erich Wolf, 1962, 421 ff.)
Delegations obligandi
The commitment statement ( delegations obligandi ), the delegate committed with the authorization of delegating against the Delegatar. Herein lies the crucial difference to the delegations solvendi because initially held no power, but merely an obligation to pay.
The delegations obligandi turn, has two forms: active and passive delegation.
Active delegation
In the active delegation a believer exchange takes place, ie for the case that the Delegant the creditor is the delegate that Delegant can transfer its existing exposure to the Delegatar.
It is important that this must be done by a statement of delegating always, as he loses his claim on the delegate to the Delegatar and it therefore requires a consent in this type of delegation.
Since the Roman law there is no possibility for the assignment (see assignment ) saw a claim, this active delegation was of particular importance.
Passive delegation
In the passive delegation a debtor change takes place, ie it assumes the delegate blame the delegating ( reus ) and thus committed against the Delegatar ( creditor ) as a new debtor ( alius reus ). This is probably also the most common case, the delegation dar.
It is also important that as alius reus ( other / new debtor) designated delegate need not necessarily be of the delegating obligor. There are recorded so that the cases of donation. Therefore needed not the consent of the old debtor ( Delegant ) because it will not lose a claim as in the active delegation, but paid his debt gets (see also Article 1274 Civil Code ). The Altschuldner is thus freed from his leadership duty to the creditors.
There are even double delegations conceivable, ie transfer the one Delegatar his gained due to the delegation request by another delegation, and thus his creditor the new debtor, can be transferred to his, the Delegatars place.
Execution of the delegations
The delegations were usually closed by stipulation, so let through a formal promise, but also could informally take place without explicit authorization. The delegations will be upheld unless it is done with the intention of delegating is so permitted by implication, which can be done in the field of passive delegation even against the will (see above).
If a stipulation is done it can be distinguished between abstract and legally enforceable stipulation.
The dubbed stipulation is present at passive and active delegation. For example, such a Stipulationsformel with Novation in the field of passive delegation go something like this: " quod mihi Primus debet, mihi dare spondes " or in the active delegation: " quod Primo debes, mihi dare spondes "
The abstract stipulation suit most delegations application, which is no obligation to reason, and therefore no novation is possible. So, for example, at a double gift with the words: " centum mihi dare spondes? "