Pledge (law)

Pledge is the right business secure a claim by a lien on movable property, rights or claims in favor of the pledgee ( the chargee ). The protection buyer will be given the legal authority to utilize the pawn, if the secured debt is due and is not paid.

5.1 Scope
5.2 effectiveness

Legal bases

The contractual lien on movable property comes through agreement on the lien and required delivery of the thing by the protection seller ( the owner still remains ) to the protection buyer ( mortgagee ) concluded ( § 1205 BGB), the latter is hereby owners. As handover spare the assignment or pledge of the claim ( § 1205 para 2 BGB) and the granting of co-ownership ( § 1206 BGB) are allowed. If the indirect transfer possession instead of passing, it is an indication to the direct holder is required ( § 1205 para 2 BGB). However, provision, § 1206 of the Civil Code, the pledging by the granting of ( indirect or direct ) co-owned suffice. A constructive possession, however, is excluded. The possession entitles the pledgee for recovery of the pledged property if the debtor has failed to fulfill its payment obligations and the debt is due ( § 1228 para 2 BGB).

A to be secured (credit) call does not need to exist ( § 1204 para 2 BGB ), but they (not according to the amount ) must already at the time of the lien order after the emergence of reason may be individualized. This requirement does not relate to the protection provider; a lien can also be ordered for a claim against a third party. The guarantor must be either the owner of the pledged item or have the power to pledge. Lack the authority of the guarantor, as are the legal transaction lien pursuant to § 1207 of the Civil Code provisions on the acquisition in good faith of the property in accordance with applicable ( with the exception of § 933 BGB).

The strictly accessory, so dependent on the existence of a receivable to be secured lien ( § 1210 para 1 BGB), which can be ordered only on individual objects ( specialty), entitles the secured party under certain conditions for recovery of the pledged item. During the duration of the pledge of the protection buyer has the thing to keep for the guarantor ( § 1215 BGB).

Types of pledge

In the pledge of movable property and bearer securities whose transfer to the legal effectiveness is necessary. If the secured party is for a pledge already direct owner, either the mere agreement on the lien ( § 1205 para 1 sentence 2 BGB) or the grant of joint ownership ( § 1206 BGB) is sufficient. As handover spare the assignment of the claim is possible ( § 1205 para 2 BGB).

Claims and rights can be effective only pledged if the garnishee a pledge ad receives ( § 1280 BGB). The pledge display provides a non- waivable, receiving needy effectiveness precondition for the emergence of the lien dar. On this last Teilakt the legal formation offense it is therefore necessary. The lien is not already with the pledge, but in accordance with § 1280 of the Civil Code in the first place with the display thereof effective. For fact and date of receipt of a declaration, the sender bears the burden of proof. The pledge display leaning content on the garnishee declaration of § 840 Paragraph 1 No. 1 to 5 ZPO on, with which it is used legally. The garnishee must deliver to her the following acknowledgments:

He has taken note of the pledge of receivables clearly specified knowledge and
He is aware of the pledge and
Primary / equal rights of third parties are not available and
It is the terms and conditions do not apply if the garnishee is a financial institution.

The Notice of the garnishee, he had bookmarked pledging display is not enough. This mere statement " earmarked" no more than that the garnishee hereby confirmed not mean for the pledgee, note the lien of the pledgee in payouts and do not want to make payments to him or to the creditors, without the consent of the pledgee. Fact that the creditors themselves or other lien creditors had priority rights to satisfying this requirement, however, is not to derive from this. 's why concrete above 4 confirmations required to be obtained.

Pledge in practice

Most common form of the pledge made in the context of the credit protection through credit institutions and at pawn shops. Credit institutions pledge as collateral for loans mostly all types of bank accounts (even if they are maintained at other banks ), securities or precious metals on the basis of standard bank lending limits. These tend to be higher than at pawn shops at banks, because to be pledged with the latter often less fungible things.

Form

The law provides for contracts pledging any particular form, but they are particularly completed for reasons of proof with gewillkürter writing ( § 127 BGB). Note the exact name of the pledged goods or rights. Specific procedural requirements for the pledge of movable property do not exist. For receivables and rights the respective shape is observed, which would be required for the transfer of the law ( § 1274 BGB).

For securities transfer form of the respective securities kind is observed. For bearer securities, the provisions of the pledge of movable property ( § 1293 BGB), in order papers, § 1292 BGB ( lien or Vollindossement, handover ), Rektapapiere be ff BGB pledged as collateral ( pledge pursuant to § § 1273 is the fact securitized receivables, " the law of the paper follows the law of the paper "). Is the pledge of shares in accordance with § 68 Section 2 Sentence 1 AktG subject to the approval of the corporation, this must be considered.

Special shapes

A special form is the group of qualified identification papers whose legal character is governed by § 808 BGB. In the pledging practice are most common the passbook and the (life) insurance policy in the pledge.

Books pledging of savings ( cash )

The savings account is like the other papers in accordance with § 808 BGB and § 793 BGB the certificates after a security. It represented as such a power and opened the way to get this without factual justification. However, the legitimation effect a savings account only extends to the legal effect promised by the issuing credit institution services. The ( unauthorized ) Buchhinhaber can on the securitized receivables have therefore only so, as promised. At the promised performance includes all payments, which do not require termination of the saver. A credit institution is therefore in accordance with § 808 para 1 BGB by a power of the book holder is not free if it pays off in savings deposits at statutory notice in deviation from the "General Savings conditions " without notice on the notice -free amount,. The issuing bank is entitled to the austerity conditions, but is not obliged to pay due to each rug of the passbook payments. The ( unauthorized ) owner of a savings account to do so before only declarations that are necessary to take delivery of the promised performance for the creditors of the savings assets. For contractual changes outside of the promised performance only the creditor is therefore entitled. Not the promised power belongs also paid for and registered blocking entry in the payment of savings assets before maturity, the payment via the contractually guaranteed maximum monthly amount. Compliance with statutory notice periods, therefore, belongs to the " promised performance " so that premature withdrawals are not covered by the legitimation effect of the passbook. Thus, the promised service does not apply to amounts that are paid requires a dismissal of the creditor. Paying a bank as part of the promised performance at the non- legitimate holder of the passbook, this has discharge is also against the creditor, unless the lack of authorization was known or gross negligence unknown.

The cited Supreme Court ruling of 1958 was based on a case in which the mother had lifted more than the notice -free amount from the savings book her daughter. This set regularly preceded by a notice to the only daughter had been entitled as a creditor of the savings assets. Moreover, since the bank has been positive known the mother's lack of authority, she had not paid with discharging effect and had to refund the amount exceeding the promised performance payout daughter.

Pledge of insurance policies

The legal nature of the insurance policy is governed by the Insurance Contracts Act only imperfectly. The provision of § 4 SG only prevents the design of the insurance policy to a pure bearer paper. With the insurer contractually granted permission to pay to each holder of the insurance policy with the effect, but without being committed against this performance, the insurance policy to a qualified legitimation paper within the meaning of § 808 BGB. In addition, the insurance shall be declared entitled to see the certificate holder regarding other disposition of rights under the insurance contract to be justified. The legitimation effect of § 808 paragraph 1 sentence 1 BGB extends to the contractually promised benefits. In contrast, a qualified legitimation paper gives the owner basically no right to make declarations of intent that are binding only on the creditors of the legal right. Only to the extent necessary to take delivery of the promised benefits in the deed declarations of intent, may also be the owner of the certificate they leave, because otherwise the legitimacy effect of the deed would be void. Contractually promised performance is in a life insurance but not only the performance of the sum insured in the insurance case. Promised by contract is the performance of the surrender value after termination of the contract ( § 176 VVG). Because the right to the cash surrender value is just another manifestation of the right to the sum insured. Accordingly, extending the legitimation effect of the insurance policy as instrument within the meaning of § 808 BGB to the right of termination in order to obtain the cash surrender value. Insurance can be the owner of the insurance policy therefore already under § 808 BGB View as entitled to terminate the contract, if this seeks the payment of the surrender value.

The pledging of savings or rights from life insurance is only secured by the pledge to the debtor in effect ( § 1280 BGB). By displaying the debtor is aware of the pledge. He can not therefore be paid to the ( unauthorized ) rugs of documents with discharging effect. For the effectiveness of the pledge a handover of the passbook or the policy of the protection buyer is neither necessary nor sufficient. In case of utilization but may require a payment by the debtor of the passbook or the policy only against presentation of the document, the protection buyer in spite of existing pledge ad because the issuing debtor makes a payment contract to the submission of certificate depends. For this reason, savings accounts and policies are to be handed over upon completion of the pledge contract to the protection buyer.

Claims and rights

In the pledging of receivables transfer form (§ 1274 para 1 sentence 1 BGB) must be observed as with their assignment. While a patent may be transferred informally (§ 15 para 1 sentence 2 PatentG ), the transfer of business shares of a limited liability company must be certified ( § 15 para 3 Limited Liability Companies Act ). The pledge of limited companies is therefore also require notarization.

Conditions of lien

The contract liens also the so-called AGB- lien of credit institutions is part of their terms and conditions. This results from No. 21.1 Conditions savings banks or No. 14.1 Conditions banks lien, the banks want to give a contractual lien on property arising in future unsecured claims against a bank clients of available valuables. The valuables need not even to be certain concrete at the time of appointment of the Terms of lien, however, must be owned by the bank customers. It is of importance that the claims against the customer (ie in addition to the original justification by credit agreements also " tolerated " overdrafts ) must be incurred bank requirements. The 1274 Civil Code required for the formation of the Terms of lien under § 1205, § agreement is made with the acknowledgment of the Terms and Conditions at account opening. To claim the credit institutions must demonstrate a legitimate security interest. A limit of coverage along with release clause is - as usual with collateral in banking usual - not required.

Scope

The GTC - pledge clause consists of the receivables and the security level. The reason debt is sufficiently precise when referring to existing and future claims which may arise from a fixed circle of right relationships. This is described concretely enough with the concept of business connection, which is explained in detail in the subsequent phrase "in particular from current account and from the granting of loans of any kind ." To acquire the assets of the estate or the power to dispose of law or fact kind enough This includes bearer securities and other movable property, provided they are not kept in a rented where the AGB- lien -making bank deposit box ( closed depot). The AGB- lien does not extend to ordering and Rektapapiere because in it to transfer the legal right next agreement and transfer additional requirements such as an endorsement or an assignment are met. Also be non- detects the overlapping abroad domestic and foreign securities. The Terms and Conditions are subject to all lien claims of the customer against the credit institution itself or against third parties unless extends his power to dispose it. Of significance (14.3 Conditions banks AGB-Sparkassen/Nr No. 21.2. ) Are especially held with the institution concerned, uncommitted balances from current accounts, time deposits and savings accounts ( lien on their own fault ). When thereof debtor, the credit institution may waive a pledge notification pursuant to § 1280 BGB.

Are the formal requirements for the assertion of the Terms lien satisfied, nor deposit maturity must have occurred. Mortgage maturity is when the credit institution has overdue receivables from its customers, which are not met on time. If a corresponding need for security is a bank of their AGB- lien on the accounts receivable from a customer in an account balance may exceptionally make use even before deposit maturity by to secure a subsequent realization of any orders of the customers more permits ( " Account Lockout "). Does the bank is that the customer has his account balances, they are so far free of its lien rights.

The rank of the lien depends on the time of the order, so that the lien of the financial institution takes precedence over later ordered lien of a third party even in the range where a secured claim the credit institution should be developed only after ( § § 1209, § 1204 para 2 BGB).

Effectiveness

As part of the literature and case law on § 307 BGB the Terms lien is one of the critical clauses. The effectiveness of the lien clause in the terms and conditions is recognized in law and literature. It is generally permissible, even if it involves future claims. The mortgage clause of the Conditions is regularly interpreted by the jurisprudence of the Supreme Court as meaning that the security applies only to claims arising from the banking relationship and to meet bank acquired receivables.

Impairments

Rights or claims can only be pledged to the extent they are subject to attachment ( § 1274 para 2, § 400 BGB). Demands, however, are not subject to execution, are therefore equally suitable for a pledge for such an assignment. This also applies to claims that are not transferable.

In the pledge of movables is a bona fide pledge of acquisition by the secured party (§ 1207 BGB) due to the immediate possession of the acquisition. The provision refers to the provisions of the Civil Code on the acquisition in good faith of movable property. The secured party may therefore not be known or unknown due to gross negligence, the non-authorization of the pledgor. In coarse - negligent ignorance of the secured party is, if he violates the due diligence in an unusually high degree, by allowing appropriate knowledge sources unnoticed, although he is aware of suspicious circumstances. Which the pledged movable property to its owner were stolen, they have been lost or lost in some other way, a good faith deposit acquisition is excluded. When demand pledges the protection buyer has to get a clear picture about the legitimacy of the pledger as in the assignment, as a good faith acquisition of receivables is not possible.

In the pledge of bearer securities, which must be the protection buyer has yet to pass, eliminating a good faith acquisition, if the secured party is a bank. Credit institutions are defined in § 367 paragraph 1 HGB special audit obligations imposed whereby bona fide mortgage acquisition is excluded if the loss of the security was published in the Federal Gazette at the time of the pledge. The case-law, in this case of credit institutions compliance with particularly high duty of care. Even if the loss was not made known to a credit institution in counter transactions must impose high volume suspicions.

The protection buyer arising from its safekeeping obligation and duty of care. So he has pledged a change in time to submit to the drawee for acceptance (Article 21, Article 22 WG) and the recourse create conditions (Article 44 WG). The threat of deterioration of the pledged item is reported to the pledger ( § 1218 para 2 BGB). However, the protection buyer is not obliged to provide for the conservation of value of pledged shares.

If bank deposits or securities of spouses pledged, the secured party has to examine the problems of disposal of all the assets. The conditions are, if the value of the pledged assets or securities exceeds 85 % of the total assets recorded living in Zugewinngemeinschaft spouses. Then next to the signature of the pledger and the consent of the spouse is required. In the cited case, a husband had his bank securities as collateral for loans to him pledged, without obtaining the consent of his wife. Therefore, this pledge was invalid under § 1365 BGB. The problem of the disposal of all the assets also applies to situations in which one spouse pledged without the consent of his spouse's securities or assets as collateral for loans to third parties.

Pledging ban

Non -transferable rights can not be pledged ( § 1274 para 2 BGB). Non- pledged, in particular unpfändbare references. Three types can be distinguished unpfändbarer Covers:

Absolutely unpfändbare remuneration ( § 850a ZPO). These are benefits which are paid as an incentive for continued employment or as reimbursement of expenses;
Due to attachment covers that can be seized if enforcement has not resulted in the other movable property of the debtor to a complete satisfaction and corresponds to the attachment of fairness;
Relatively attachable covers ( § 850c ZPO), of which the rest of labor income falls.

Absolutely not subject to seizure are, inter alia, Anniversary payments ( § 850a No. 2 ZPO ) as well as marriage or birth aids ( § 850a ZPO No. 5 ). Further exempt from attachment benefits from the social assistance unless recorded on welfare in anticipation loans are to be hereby secured ( § 53 para 2 SGB I). Absolutely not subject to seizure and thus not pledged, also are educational, maternity or disability benefits ( § 54 SGB I) and child ( § 54 para 5 SGB I). Limited distrainable are unemployment benefits, aid, short-time working or bad weather compensation ( § 54 SGB I). ( 7 days ago since 1 July 2010) subject to seizure for credit, then began Pfändbarkeit and therefore also Verpfändbarkeit ( § 55 para 1 of the SGB I) In case of transfer to an account such benefits were for a period of 14 days. January 1, 2012 There are seizure protection only on a P- Account ( § 55 SGB I is repealed). Where the credit comes on the P account, since January 1, 2012 no longer plays a role. It is therefore, for example, regardless of whether the credit is due to the P- account on income from self-employment, an employee at work or on social benefits ( § 850k ZPO).

Invalidate the lien

As an accessory right, the lien expires " with the demand for it is " (§ 1252 BGB). If the credit finally paid off, and quite effective extension of the pledge to other demands than the original (credit) call is not possible to invalidate the pledge of law. Then the pledged goods are returned or make handover surrogates reversed.

Despite continued existence of the debt, the lien is void if the collateral taker picks ( § 1255 BGB), the protection buyer ownership of the pawns (through purchase) acquires ( § 1256 para 1 BGB) or if he restore the pledge the pledgor or owner ( § 1253 para 1 BGB). The return must be voluntary and must not be merely a temporary basis, and indeed to the pledgor or owner; Return to the different from the owner debtor brings the lien void.

Irrefutable law will void the lien if the pledged property in the possession of the owner or a third party are ( § 1253 para 2 BGB). After extinction of the lien, the pledgor has the right to reclaim the deposit by the secured party ( § 1223 para 1 BGB).