Subrogation

A subrogation (Latin ) represents in civil law is a statutory special way of replacing an asset with another object or a compensation claim and is conceptually surrogate ( = replacement ) is derived.

Example: The contractor U married the landlady H. U is applied to H in the standing in their home ownership, in which one of the H belonging washing machine. When, after some time, the washing machine breaks down, a new washing machine from the common household budget is purchased. At a subsequent divorce, the question arises: in whose ownership the new washing machine is?

The solution in the example resulted from § 1370 BGB aF (repealed since September 2009 ): This was that household items that are purchased instead of no longer existing or worthless objects, property of that spouse's, the no longer existing or worthless objects had heard. Due to the statutory subrogation thus jointly acquired item shall become the sole property of the owner of the lost cause.

The replacement of an object by another, for which the law prescribes a subrogation, can run on different circumstances based: wear and tear or destruction, damage or removal by a breach of contract or tort.

Statutory provisions on a subrogation can be found in various parts of the Civil Code, the law of obligations, in property law, family law and inheritance law. It is in particular cases in which a certain object to a material entity ( heard about the inventory of land in the case of usufruct under § 1048, Section 1 of the German Civil Code ] or to a fund (eg in the civil-law: § 718 para 2 BGB, the common property in the comparatively rare community of goods: § 1473, Section 1 of the Civil Code, or to cases in which there was a right in rem in the original object and continues by virtue of subrogation to the replacement item ( so the usufruct under § 1046, Section 1 Civil Code and the lien under § 1219 paragraph 2, sentence 1 BGB). Surrogationsvorschriften in inheritance law found in § 2019, Section 1 of the German Civil Code ( inheritance ), this § 2041 (community ), § 2111 ( the provisional heir in the interest of the heirs ).

Regardless of what parts of the Civil Code, the individual cases of subrogation are regulated, there are two different types: the rem subrogation and debt legal subrogation.

Rem subrogation

In an in rem subrogation, the most relevant case in practice, the law provides about before ( for example, shown in the scheme of § 1473 of the Civil Code for the common property, a special pool of assets in the marital community ) that something on the basis of a belonging to the common property law, or is acquired as a replacement for the destruction, damage or removal of a common property belonging to the object or by a legal transaction which concerns the community property, immediately falls into the common property. The subrogation here has a direct effect in rem, a special act of transfer is unnecessary. This regulation of the automatic transition to the rules on the transfer of ownership, such as under § § 929 ff BGB bypassed. In addition, difficulties of proof may be avoided by the statutory regulations concerning the subrogation. Standing firmly ownership of the original object and the fact of the replacement, it needs no further proof of ownership.

Even when claims attacks the subrogation, bearing in mind is that only the demand is surrogiert, but not the entire contract is drawn into the fund. The subrogation is not a case of the legal contract transfer.

Debt Legal subrogation

The blame legal subrogation in Germany includes the case of § 285 BGB. Is the obligation of the debtor's accounts to a power (such as the seller's delivery of the sold used car ) due to impossibility (because a third party has destroyed the vehicle ) and acquires the debtor therefore by the third party a replacement or he has against this claim for damages, so the creditor (in this case the buyer) demand surrender of replacement or assignment of the right to reparation. In contrast to the in rem subrogation here takes the subrogation not directly, but instead it only occur to blame legal claim to restitution of the surrogate.

Another case of the law of obligations only acting subrogation lien is: § 1258 paragraph 3 BGB.

  • Law of Obligations ( Germany )
  • Property Law ( Germany )
  • Family Law ( Germany )
  • Inheritance
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