Lien

A lien (Latin pignus ) is a limited real right of the pledgee to a thing or a right, which is usually ordered to secure a claim. If the creditor his claim, so he can satisfy through the utilization of the pledged object. The debtor of the receivable and the pledgor need not be the same person. On the other hand coincide generally pledgee and the creditor's rights.

  • 3.1 Basic principles
  • 3.2 bargaining chip
  • 3.3 mortgage 3.3.1 maximum amount of mortgage
  • 3.3.2 Simultaneous mortgage
  • 3.3.3 Forderungsentkleidete owner mortgage

Classification

We distinguish:

In accessory liens with the production, transmission and the continued existence of the lien of the claim depends. Nichtakzessorische liens but are usually ordered also to secure a claim. For them, but missing a thing comparable legal link with the claim; their fate is connected only through a contractual legal agreement ( security agreement ) with the demand.

German law

In German law, only the lien on movable property ( chattels ) and lien rights in the narrow sense is called. The mortgages are known as mortgage, mortgage Mortgages and liens in the broader sense.

The lien is to exploit under German law of property the legal title of the creditor, a chattel, a claim or a right of the debtor to satisfy a claim. The lien is strictly ancillary designed so dependent on the existence of the secured claim. According to the mode of origin of three different types of liens can be distinguished:

Business law lien

The contract-based lien on movables economically plays only a minor role. One reason for this is that in Germany the legal transaction lien is (almost) always pledge law. Thus, the pledgor must deliver possession of the pledged property to the creditor. This takes the pledgor the opportunity to continue to use the pledged item (such as the eradication of her secured claim ) economically. Therefore, the lien has been largely replaced in practice by the collateral assignment. A certain significance reserves the property lien by the pawnshops and margin loan.

The appointment of a legal transaction lien in accordance with § 1205 para 1 BGB by agreement and transfer the matter. This reflects the fact that the German law a non-possessory lien does not know as rem -action law. The weakness of the lien is that the pledgor the subject can not continue to use, such as Machines at a company. However, it must transfer not be misunderstood as the granting immediate possession. It is sufficient that the creditor receives the indirect ownership (eg:. .. Belongs to the V a car this uses only his outward surviving son V mortgaged the car to the bank B for a loan in order to bring the mortgage to the formation ranges it off when V indicating his son that this should now have for the bank, the son so the bank disclosed the possession. the V now does not retain any ownership. ) must be distinguished from the second option of lien order, which in § 1205 Section 2 BGB is regulated. Here the right to restitution is assigned. The scheme incorporates the content of § 931 BGB, due to property law requires disclosure principle but also the display of the pledge to the owner. (Eg: V lends his son his car for a week during this week he agrees with the bank B on a loan to its securing a lien is to be appointed to the car V agrees with B that these cars.. to get directly from S. then writes a letter V, in which he sets S of the pledge in advance and arranging the publication of B after the end of the loan period. )

It is possible under § 1206 BGB also a qualified joint possession of the lien debtor. This is, for example, given if the debtor and creditor each have a key to a safe deposit box, and the debtor without the creditor is not able to open the tray.

For receivables as collateral takes the display to the garnishee and the need to transfer of instruments such as savings account or insurance policy to the point of surrender. Therefore, the scope is limited in practice on small loans that are granted by pawnbrokers as well as the pledge of securities and life insurance. Also possible is the use of a deposit order, which already allowed the drawing of uses to reduce the secured debt in addition to the backup.

The exploitation of the deposit in accordance with German law generally covered by private sale of the creditor. Before the recovery of the deposit can be made, the following requirements must be met:

  • The claim must be paid (deposit maturity ) (§ 1228 BGB),
  • The sale is threatened (§ 1234 para 1 BGB),
  • The sale is no earlier than 1 month after threat (§ 1234 para 2 BGB): Cash only ( § 1238 BGB)
  • Either by public auction ( § 1235 para 1 BGB ), the time and place of the auction are publicly announce ( § 1237 BGB)
  • Or by sale through a broker, if the mortgage has a quoted market value ( § 1235 para 2 BGB).

It is possible next to the agreement of the decline of the property to the pledgee. This is in other jurisdictions the rule.

In the receivables of the garnishee may after entering the mortgage maturity afford only to the pledgee ( § 1282 BGB).

The lien expires by

  • Invalidate the claim for which there is,
  • Removal by the creditor,
  • Voluntary return the item or
  • Lawful disposal.

In addition, the pledge goes to the general property law principles, as in the case of § 936 BGB, if a third party acquires in good faith unencumbered title to the pledged property or the adverse possession and in combination, mixing and processing. In insolvency of the pledgor is a preferential right of the pledgee.

Statutory lien

Statutory liens come about not by contract, but directly due to legal arrangement and make it to either the possession of the creditor's interest in the pledged property or the transfer of the pledged property under the jurisdiction of the creditor. An agreement on the formation of statutory liens is therefore not required. The listed exhaustively in the law business owners provide advance payments, whereby a claim against the principal is created. The need for security of Vorleistenden is supported by the lien on the property brought in or the thing to be processed or transported things invoice.

Is the statutory lien arose, the provisions of the contract lien ( § 1257 BGB). Property liens are when certain entrepreneurs already engaged in the ownership of movable property and have a claim against the owner; It is next to the plant contractor lien on a regular basis to the commercial liens of the commission, freight forwarders, carriers and warehouse operators are included in the Commercial Code. Without property liens are the so-called contribution liens; Here it depends on the contribution of the pledged property under the jurisdiction of the lessor, the lessor and innkeepers.

Conditions and foundations for all legal liens are:

  • Statutory liens must in the affected contracts are not specifically mentioned, but also apply without agreement;
  • Must result in the existence of a creditor's claim arising from the specific protected by the statutory lien contract (eg lease ) ( strict accessoriness );
  • Property of the debtor of the pledged item: the debtor must be the owner of the pledged item;
  • A good faith acquisition of statutory liens is excluded 1257 of the Civil Code for the non-possessory liens under § § 1207, § unless the recovery is done by auction by the general public appointed, sworn auctioneer ( see § 935 ( 2) BGB) while in the introduction of liens a good faith acquisition for protection of trade is possible ( § 366 paragraph 3 HGB ).
  • A contractual waiver of statutory liens is possible.

These statutory liens affect only a narrow circle of beneficiaries, which is listed exhaustively in relevant laws:

  • BGB: Landlord's lien ( § 562 BGB)
  • Lessor or lessee - lien ( § 583 BGB)
  • Business entrepreneurs lien ( § 647 BGB)
  • Lien of the hoteliers and guest host ( § 704 BGB)
  • Lien of the commission agent ( § 397 HGB)
  • Lien of the carrier ( § 440 HGB)
  • Lien of the forwarder ( § 464 HGB)
  • Lien of the bearing holder ( § 475b HGB)
  • Demand lien the crime victim (§ 1 OASG )

One can distinguish between konnexem and inkonnexem lien. From a konnexen lien is when the claim and the Good are related, for example, stored goods and storage fee. From a inkonnexen lien is created when good and demand are not in a context, such as at a forwarding agent: Debt of a previously not paid transport request. This lien may only be exercised if the claim is uncontested.

Garnishment lien

The German Code of Civil Procedure refers to the arising in the execution lien on the rules governing the legal transaction lien. Through the act of state garnishment the consent of the owner of the thing as it is replaced. The recovery takes place, in this case by public auction by the bailiff or by the general public appointed, sworn auctioneer.

On the origin of the attachment lien requires the effective involvement. It is controversial whether additional requirements are necessary.

  • The particular represented in teaching public law theory rejects the need for further legislation, in that after this is the garnishment lien purely public nature. From this classification follows a purely procedural right to conduct recovery operations and to receive the proceeds, but not even to be allowed to keep it. Basis of a recovery so is the attachment lien, but which arises solely by the entanglement.
  • The mixed private law - public law theory (now probably prevailing opinion ) differentiated by garnishment lien on the one hand and entanglement on the other. Only the latter is the basis of recovery. The attachment lien shall rule on the substantive right to be allowed to keep the proceeds, and has private nature. For its formation is needed in addition to the effective involvement of the essential requirements and enforcement procedures. Furthermore, no lien may arise in debtor foreign matters and the creditor must be in possession of an enforceable title. Consequently, as in the recovery debtor foreign matters ( eg by auction ), although the Purchaser despite missing attachment lien by the successful acquire property by virtue of sovereignty, lack of attachment lien but supplied to the creditor the proceeds from the auction without any legal basis (and thus kondizierbar ).

The public law theory comes in this situation in a different way to the same result. Here is the basis for recovery alone the garnishment lien, which is independent of the property but is caused by the entanglement. Since this view thereof does not take action for material authorization, has received even after her creditors the proceeds without legal basis and this issue accordingly.

Different results provide the theories in principle only if the origination date of the attachment lien plays a role, so for example, if the rank of a right is crucial, or within the scope of § § 50, 88 Insolvency Act.

Austrian law

The lien is - in contrast to the "full right " property - a limited right in rem. It ensures ( obligational ) demand eg from loans by one thing. The pledgee, so the creditor's rights, in favor of which the lien has been established has the right to seek satisfaction for non-compliance by the due date of the realization of thing. In bankruptcy, he has acc. § 48 IO ( Insolvency Act ) a preferential right: the pledged item is separated from the bankruptcy estate and thus removed from the pro rata recovery in bankruptcy, so the lien can remain in full.

The lien may arise in legal transactions by pledging, judiciary by garnishment or directly from the law.

Through its in rem ( property law ) quality, the lien is fundamentally different from guarantee and assumption of debt. In both of these cases the liability fund is merely extended by adding further (possible) the debtor; but in this personal assurance, it is quite possible that even the guarantor or the accession debtors become insolvent. When lien is liable not a person but the pawn (and this even in bankruptcy in full).

Can be pledged all matters within the meaning of § 285 Austrian Civil Code, ie not only physical things also have rights. Note: If money is pledged, it must not use the pledgee, he has separated from his money to keep it (to prevent the acquisition of property by mixing) and has exactly the same notes and coins return. Therefore, there is also an irregular deposit of money ( pignus irregular ). In this case, the pledgee owners and is allowed to use the money and must return only the same amount. ( The legal nature is in dispute. ) Components and accessories are in doubt as mitverpfändet.

Basic principles

  • Accessoriness: The lien is only as far as a secured claim is made. If the requirement is satisfied, the lien automatically expires; it does not require special mode; are, for example, the pledge creditor (see below) the matter after the expiry of the amount due back (366 Civil Code §), the owner, ie the former debtor, with the property suit his cause explained recite without him the pledgee a right of possession - this by the pledgee at the upright lien - could answer.
  • Specialty: The lien always refers to certain things. So it can not be pledged the assets of a person as such.
  • Undivided deposit liability: The lien shall be liable for the entire claim. It adheres accordingly as long as is extinguished until the entire claim. This is the debtor of the incentive will be given to meet the demand in full.
  • Title and Mode: Like any real right is also required to justify the lien of a Title ( eg lien contract ) and a
  • Mode. In letztererem is - a distinction between movable and immovable property - as in the acquisition of property: movables: Here the pawns principle applies; the mortgagee must hold the things in order to maintain the lien.
  • Immovable property: The lien shall be recorded in the land register, which a mortgage, so a lien on immovable property arises.

A bargaining chip

In contrast to the acquisition of certain forms of property ownership transfer, such as the constructive possession of publicity reasons, are not eligible. However, the handover short hand is possible. The pick characters (eg key for warehouse ) is - as a subsidiary ownership transfer form when physical transfer is impossible or impracticable - permitted.

Simply explained: Pledged movables, such as securities, commodities, etc. The pledge right is only by physical delivery, symbolic handover, handover by declaration or by ownership statement to be valid.

In the pledge of motor vehicles ( motor vehicles) the transfer of the type certificate is not enough, since the transfer of the motor vehicle is neither impossible nor impractical. This fully applies the principle bargaining chip, so that the pledgee, the car actually has to take in his taking possession. In practice, vehicle are thus used as collateral for bank loans not suitable because the bank the car would have to be taken into custody in accordance with what has been said, but why banks are not usually willing.

Mortgage

Mortgage, also called mortgage is a lien on immovable property, ie a property. It is established by entry in the land register, specifically in the C- sheet ( last sheet ) of the Land Registry deposit. Before registration, the land registry court requires proof of the existence of the claim to be secured. Since the pledgee is not the real owner of the thing, which would also be contrary to the purpose of the mortgage, in practice, they are here to a non-possessory pledge.

Special features arise for the following special forms of mortgage:

Maximum amount of mortgage

It occurs, in particular, when a bank grants a credit line, but would like to pledge collateral legal. When it comes to their incorporation of a lien up to a certain amount ( maximum amount ). Up to this amount so that the rank of "consumed" - regardless of whether a claim is actually up to the maximum. The lien consists of course only up to the amount of the claim, the mortgage, however, up to the maximum. This shows the possible difference of lien and mortgage. Registration in the Land Registry currently costs 1.2% of the mortgage amount.

The maximum amount of mortgage weakens the principle of specialty in the lien so far off as the lien is not granted for securing a particular claim, but the lien may also be granted to future demands, for example - but condition is that they are at least sufficiently determined (for example, all claims from a particular legal reason).

A subspecies of the maximum amount of mortgage is the so-called " bail mortgage" where a mortgage for future claims for damages or warranty claims will be granted.

Simultaneous mortgage

Several properties undivided liable for a claim. The pledgee has therefore in default of the debtor's right to choose with which property he wants to meet - it can take several locations in part to complete.

Internally, however, is a right of recourse of the person who was claimed to affirm - or have those Nachgläubiger, who have not come through the utilization of "their" property to the train, " remaining" the right to grant a mortgage on one of the properties.

Forderungsentkleidete owner mortgage

As stated above, there is a mortgage as long as is done to their land registry deletion. Now, if the secured claim and thus force accessoriness also extinguished the lien, there is a mortgage up to the annexation. Thus, the former debtor now has the opportunity to use those obtained by this mortgage lien ranking for debt consolidation. Now he can collateralize a different or new claim with this rank. The risk of forderungsentkleideten owner mortgage is, however, that a good faith acquisition of mortgage is possible due to the principle of confidence of the land register. As long as the mortgage is registered in the land register, a bona fide third parties on the land register prior to purchase the lien, the mortgage in trust.

To avoid this danger, the owner of the property has the opportunity to be on the vacant mortgage area with the deletion also a rank reserved incorporate in the land register, which is valid within three years and the owner 's time, the deposit spot with another claim to show.

Similar purposes pursued with a one year temporary conditional pledge registration.

Pledge of rights

Also, rights, so incorporeal things are pledged. This is similar to the sale of receivables to communicate as Publizitätsakt the debtor of the pledge.

To the pledge of a claim is also for example in the pledge " a passbook ". Here, the value of physical matter is irrelevant because the least, it 's all about the cuteness by the passbook claims against the bank.

In the legal subrogation, ie a right arising from the law of assignment to eg guarantor who vouches for the debtor, it also comes to an "automatic " transmission of the lien. In contrast, requires an ordinary, ie a legal transaction (eg purchase ) may occur assignment of the normal mortgage legal mode (eg handover ).

Alternatives

Alternative to the lien, there is the transfer of ownership or security purposes. Another form of in rem is the retention of title.

Swiss law

The lien allows, inter alia, a debt to pledge (Article 151 et seq DCBA ).

In bankruptcy include goods owned by the debtor pawns in the bankruptcy estate (Art. 198 DCBA ).

A special lien applies for railways and shipping companies; to the Federal Office of Transport runs of a railway mortgage book. The legal basis is the Federal Law of 25 September 1917, pledging and forced liquidation of railway and shipping companies ( VZEG )

In rem jurisdiction Accounts receivable Federal Court of Justice of Germany
327858
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