1. Introduction
The security assignment, also known as the assignment, is an essential instrument in the credit security business.
It enables creditors, especially banks, to minimize their credit risks by assigning the borrower’s claims to the bank.
It plays a central role in corporate goods transactions, as companies often use trade receivables as security for loans.
The flexibility and relative simplicity of assignment as security make it a preferred form of security, which is worth examining in more detail below.
2. Legal nature and legal construction of an assignment for security
The assignment by way of security is regulated under German law in Section 398 of the German Civil Code (BGB).
It is a contract under the law of obligations through which an existing claim is transferred from the assignor (original creditor) to the assignee (new creditor).
The declaration of purpose defines the security purpose of the assignment and distinguishes it from a normal assignment.
It ensures that the claim only serves to secure a specific obligation and reverts to the assignor after its fulfillment (analogous to the land charge).
3. Procedure for the effective appointment of a security assignment
Several steps are required to effectively create a security assignment.
First, there must be a valid claim that can be assigned. The parties must conclude an assignment agreement that clearly defines the security purpose. It is also important to observe Section 399 of the German Civil Code (BGB) to ensure that there are no contractual obstacles to the assignment.
Documenting the assignment and informing the third-party debtor are also essential steps to ensure legal validity and proof in disputed proceedings.
The assignment of claims is generally possible without any form. There are only formal requirements in special laws for a few claims. For example, B. the assignment of GmbH shares of the notarial certification (Section 15 Para. 3 GmbHG).
4. Exploitation and event of exploitation for an assignment as security
In the event of a loan default, the secured creditor has the right to realize the assigned claims.
This usually means collecting the claims from the third-party debtor.
The utilization must be carried out in accordance with the agreed security purpose and the legal regulations.
The proceeds from the sale are then used to repay the secured liability.
5. Possible defenses against enforcement by the secured creditor
There are various defense options against the enforcement of a security assignment:
- Challenging the security assignment: If there are defects in the assignment agreement.
- Defense of non-fulfillment: If the secured claim is not yet due.
- Assertion of offsetting options: When the debtor has a counterclaim against the creditor.
- Disputing the amount of the claim: If there is uncertainty about the actual value of the claim.
- Inadmissibility of utilization: If the exploitation violates contractual agreements or legal regulations.
6. Conclusion
Assignment as security is a flexible and widely used instrument for securing credit.
However, their legal construction requires careful attention to the legal requirements and the contractual structure.
It is important for both creditors and debtors to understand the mechanisms and defenses associated with security assignments in order to effectively protect their rights and obligations.
An expert lawyer can provide advice and representation here.
This article does not represent specific and individual legal advice, but rather only provides a rough initial overview of the very complex legal matter described. You can only obtain legal certainty for your specific case constellation through coordinated examination and advice from an expert lawyer.
I would be happy to assist you as a lawyer and specialist lawyer for a legal assessment and assessment of your case and to accompany and support you with financial transactions or the assertion of liability claims and compensation for damages from financial transactions and investments as well as with banking law issues regarding loan collateral and loan agreements. Please feel free to contact me by phone or write to me.
I advise nationwide on site or via Zoom as a specialist lawyer in the legal areas of corporate law, tax law, insolvency law and banking and capital markets law, especially in the cities and metropolitan areas around Stuttgart, Heilbronn, Karlsruhe, Freiburg, Ulm, Augsburg, Munich, Frankfurt, Wiesbaden and Saarbrücken , Kaiserslautern, Bonn, Wuppertal, Duisburg, Nuremberg, Münster, Saarbrücken, Düsseldorf, Cologne, Dortmund, Hanover, Kassel, Leipzig, Dresden, Bremen, Hamburg and Berlin.
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2023-11-18 19:34:59
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