Endorsement

An endorsement (from the Italian in dosso, " on the back" ) or Begebungsvermerk is a legally provided written transfer endorsement on an order paper, by which the rights from the order paper (especially the ownership thereof ) be transferred in whole or in part to a new beneficiary.

General

In comparison to order, bearer securities pursuant to § 929 BGB can be transferred informally by agreement and transfer - their marketability is by operation of law be classified as high. In contrast, the legislature has provided for the transfer of instruments to order, with the endorsement of a hurdle. Just by endorsement order papers are less marketable as a bearer. Since an order is denominated in a particular and named beneficiaries, had a transmission control can be found: it makes the order paper indicated that the beneficiary has actually transferred his rights. An endorsement is required for both native as well as gekorenen to order, to transfer it.

Legal Issues

The endorsement is the securities law special form of transfer of rights. The types and functions of the endorsement are regulated predominantly in the exchange law. The change of this law was chosen because of the change represents the most typical order paper. Supplementary provisions also provide still in check law and the Commercial Code.

The issuer of the endorsement is called endorser, the receiver is called the endorsee. The endorsement required by § 365 paragraph 1 HGB in conjunction with Article 13 paragraph 1 sentence 2 of the WG (Art. 16 ScheckG ) be in writing and must therefore be in accordance with § 126 BGB of the endorsers be signed by hand. A special formulation of the transfer will or the date of issue are not required, in particular takes the term " order" does not occur.

Through an unbroken chain of endorsements, which must be due to the issuer of the certificate, the endorser is legitimized as an authorized holder of the order instrument to require the issuer or debtor of the order paper performance. The endorser may exercise all rights under the Order Paper in their own name, with the bona fide purchase is protected ( § 365 paragraph 1 HGB, article 16, paragraph 2 of the WG ). Therefore, the substantive validity of the endorsees results from a complete Indossamentenkette that ensures a bona fide purchase. Managed is the good faith of the right of disposal of the powers of representation and prevailing opinion on the authenticity of the endorsement. If the Indossamentenkette patchy, the Gutglaubensschutz for the relevant act of transfer, whereby the debtor may refuse service is not applicable. Whether the good faith will be protected to the capacity of the endorser is disputed, must be denied because of an unacceptable rating opposition against bearer instruments well.

For the registered share which belongs despite its name to the born to order, refers to § 68 Section 1 Sentence 2 AktG to the provisions of the WG and thus makes the registered share indossabel. Also, § 365 paragraph 1 HGB points for gekorenen order papers on the provisions of the WG.

Functions and types of endorsement

When Vollindossament all three functions are fulfilled, however, some functions remain with the special forms of Teilindossaments overridden.

Vollindossament

A Vollindossament has three functions:

• Transport function (Art. 14 WG): With this endorsement, all rights (including property rights) from the order paper from the previous creditor ( endorser ) to the new owner ( endorsee ) are transmitted.
• Guarantee function (Art. 15 WG): Each endorser ( when you also replace the drawer of a bill ) shall be liable to any future rightful owner for the ( acceptance of change and ) performance of the securitized debt.
• Legitimizing function (Art. 16 WG): As a signatory of the owner of the order paper, which can show an unbroken Indossamentkette on this, even if the last endorsement is in blank.

Endorsement in blank

If the name of Indossatars not specified, it is a blank endorsement (Article 13, paragraph 2, or article 16, paragraph 2 WG ScheckG ); it consists in the mere signature of the endorser. Each holder of a blank - endorsed order document shall be deemed authorized, additional endorsements are no longer required. The blank endorsement does not break through the imperviousness of Indossamentenkette. If a blank endorsement alone or at the end of an uninterrupted Indossamentenkette, the respective owner is the owner ( article 16, paragraph 2 of the WG ). Therefore, an endorsement in blank provided with the order paper would be transferred by mere agreement and transfer, without a renewed endorsement required (Art. 14 WG). Therefore, the blank endorsement transformed Order papers in "technical" bearer instruments.

Special shapes

• Inkassoindossament or Prokuraindossament: The endorsee for collection is only of value ( usually in cycles) authorized (for example: "For me, to the order of xx- bank for collection "). According to AC / OrderCheck agreement only, without limiting additives (eg " value for collection " ) are permitted. It merely transfers ownership, the ownership remains with the endorsers. Therefore, in this form, the forward function is not fully realized.
• Pfandindossament: The pledgee has the right to seek satisfaction of any claim for the order paper. It in turn transfers only possession, ownership remains with the endorsers. Therefore, in this form, the forward function is not fully realized.
• Angstindossament: The endorser denied so that the following exchange holders the right of recourse liability by the words " without liability " or " without recourse ". Therefore, in this form of the guarantee function is not implemented.
• With a Rektaindossament the endorser prevent the forwarding of the certificate by the endorsee explicitly. The words " not to order" prohibits the endorsee the transmission of the order paper by another endorsement. This results from the order paper a "technical " Rektapapier, which can be transferred by assignment yet only. Therefore, in this form of the guarantee function is not implemented.

The endorsement has at gekorenen to order, only the legitimacy and transport function, but not guaranteed effect. The tradition of papers (Order warehouse receipt, bill of lading, bill of lading ) represent the securitized goods in them so that their transmission also automatically transfers by endorsement ownership of the goods.

The legitimizing function creates an irrebuttable legal presumption that the rightful owner of an Order paper of the owner of the certificate is who can prove his right by an unbroken chain of endorsements.

Assertion

In order to make the securitized in the order paper claim with the issuers / debtors argued that the delivery of the paper to the exhibitor / debtor is required. Who does not have the paper, may require no power. The presentation of a certificate for the purpose of enforcement of the securitized in their performance is a characteristic of securities. The debtor of an order instrument is 3 sentence 2 of the WG only obligation under Article 40 para to examine the outer regularity of a Indossamentenkette before his performance. He checked therefore the chain of endorsements on their completeness, but it is irrelevant whether the endorsements effective or the signatures are genuine. If the obligor to an unauthorized rugs of the order paper, it is of the power free ( § 365 para 1 HGB in conjunction with article 40, paragraph 3 WG).