Book2 Chapter04

GERMAN CIVIL CODE OF 1896

• Based on the English Translation by: Wang, Chung Hui (1907). The German Civil Code, translated and annotated with historical introduction and appendices. London: Stevens and Sons. [available on Archive.org]

BOOK II. Law of Obligations.

Chapter IV. Transfer of Claims.

Section 398.

• A claim may, by contract with another person, be transferred by the creditor to him (i.e., assignment). On the conclusion of the contract the assignee takes the place of the assignor.

Section 399.

• A claim is not assignable if the performance cannot be effected in favour of any person other than the original creditor without alteration of its substance, or if assignment is excluded by agreement with the debtor.

Section 400.

• A claim is not assignable if it is not subject to judicial attachment.

Section 401.

• [I] With the assigned claim the rights of hypotheca or pledge existing on its account and the rights arising from a suretyship established for it, pass to the assignee.
• [II] The assignee may also enforce any right of preference connected with the claim in case of compulsory execution or bankruptcy.

Section 402.

• The assignor is bound to give to the assignee all information necessary for the enforcement of the claim, and to deliver to him all documents which serve as evidence of the claim, if they are in his possession.

Section 403.

• The assignor shall on demand execute in favour of the assignee a publicly certified instrument of assignment. The assignee shall bear and advance the costs.

Section 404.

• The debtor may set up all defences against the assignee which, at the time of the assignment of the claim, were available against the assignor.

Section 405.

• If the debtor has executed an instrument for the debt, and if the claim is assigned upon production of the instrument, he may not as against the assignee maintain that the incurring or acknowledgment of the obligation was only pretended, or that the assignment was excluded by agreement with the assignor, unless the assignee, at the time of the assignment, knew or ought to have known of the state of affairs.

Section 406.

• The debtor may also set off against the assignee an existing claim which he has against the assignor, unless he had knowledge of the assignment at the time of the acquisition of the claim, or unless the claim did not become due until after he had acquired such knowledge and after the maturity of the assigned claim.

Section 407.

• [I] An act of performance done by the debtor in favour of the assignor after the assignment, or a juristic act entered into between the debtor and the assignor in respect of the claim after the assignment, is valid as against the assignee, unless the debtor knew of the assignment at the time of performance or of entering into the juristic act.
• [II] If, in an action between the debtor and the assignor subsequent to the assignment, a non-appellable judgment relating to the claim has been delivered, the judgment is valid as against the assignee, unless the debtor knew of the assignment at the date when the action was first commenced.

Section 408.

• [I] If an assigned claim be re-assigned by the assignor to a third party, and if the debtor effects the performance in favour of such third party, or if a juristic act is entered into or an action is commenced between the debtor and such third party, the provisions of 407 apply mutatis mutandis in favour of the debtor as against the former assignee.
• [II] The same rule applies if the assigned claim is re-assigned to a third party by judicial order, or if the assignor makes acknowledgment to the third party that the assigned claim is transferred to the third party by operation of law.

Section 409.

• [I] If the creditor notifies the debtor that he has assigned the claim, the assignment of which he has given notice avails against himself in favour of the debtor, even though it was not made or is invalid. It is equivalent to notice, if the creditor has executed an instrument of assignment to the assignee named in the instrument, and the latter produces it to the debtor.
• [II] The notice may be revoked only with the consent of the person who has been named as the assignee.

Section 410.

• [I] The debtor is bound to perform in favour of the assignee only upon production of an instrument of assignment executed by the assignor. A. notice or a warning by the assignee is of no effect, if it is given without production of such an instrument, and the debtor without delay rejects it for this reason.
• [II] These provisions do not apply if the assignor has given written notice of the assignment to the debtor.

Section 411.

• If a person in military service, an official, a clergyman, or a teacher in a public institution of learning assigns the transferable part of his service-pay, pay for engagement pending vacancy, or pension, the pay-office shall be notified of the assignment by presentation of a publicly certified instrument executed by the assignor. Until the notice is given, the office is deemed to have no knowledge of the assignment.

Section 412.

• The provisions of 399 to 404, 406 to 410 apply mutatis mutandis to the transfer of a claim by operation of law.

Section 413.

• The provisions relating to the transfer of claims apply mutatis mutandis to the transfer of other rights, unless the law provides otherwise.