The endorsement is a on one side obligating contract, by which itself the defiency guarantee obligates opposite the creditor third (the principal debtor in such a way specified) to in-be entitled for the fulfilment of the commitments third. The creditor wants to secure itself by the endorsement in case of an inability to pay of his debtor. It mostly concerns with third around a borrower and with the creditor a bank, which grants the loan. The endorsement secures with it as own achievement obligation defiency guarantees opposite the creditor the debt third (principal debt).

German right

The legal bases of the endorsement are in Germany in "§"§ the 765 FF. the civil law book (BGB) regulated.

The nature of the endorsement after German right

The basis for the endorsement forms first the existence of an obligation between the creditor and the principal debtor. This is called in the German law main commitment and is as a rule a loan agreement. So that a loan is granted, banks demand regularly credit collateral if the borrower become insolvent. Therefore the defiency guarantee (also co-debtor called) with the bank (the principal creditor) closes an endorsement contract, with that the defiency guarantee obligated for the principal debt to in-be entitled oneself, if the principal debtor does not follow his obligations.

The endorsement is contrary to the mutual contracts, with which both parties are entitled and obligated (for instance with sales contract), a on one side obligating contract. The creditor is only entitled, the defiency guarantee is only obligated. No obligations develop for the creditor from the contract. The creditor can require thus once of the principal debtor fulfilment of the principal claim and in addition it, if the principal debtor does not fulfill, can call the demand in on the basis of the endorsement contract, when vouching.

For the height of the obligation defiency guarantees is determining the respective existence of the main commitment. This principle is called ("§"§ 767, 768 BGB). In principle the creditor has first against the principal debtor judicially to proceed (by trying the execution), before he accesses on the defiency guarantees. This is guaranteed by the objection of the Vorausklage (that is the reference on the previous Ausklagung of the principal debtor) during the process. If the defiency guarantee has itself however directly liable - which guarantees in practice the rule actual, then this objection is not entitled to him.

In the relationship between the principal debtor and the defiency guarantee an order or a entgeltliche management of affairs is usually present. If the defiency guarantee carries out to the creditor, the demand of the creditor turns into against the principal debtor on it - the defiency guarantees -. Important accompaniment of this legal subrogation is the acquisition of all in all other respects still existing accessory safeguard rights at the demand ("§"§ 774 exp. 1 P. 1, 401 exp. 1 BGB). Due to this legal subrogation (cessio legis) and ggfls. so that connected safeguard rights or from the agency contract the defiency guarantee can require then substitution of the carrying out of the principal debtor and/or the tolerance of the utilization the safety device of serving articles. Nichtakzessori safeguard rights do not ignore in accordance with "§"§ 774 exp. 1 P. 1, 401 exp. 1 BGB on the defiency guarantee, it insist however after the iurisdiction a contractual requirement defiency guarantees on transmission of these rights.

Formal requirements for the endorsement contract after German right

For the validity of the endorsement is necessary a written explanation defiency guarantees ("§766 BGB). This has to contain in accordance with German right all substantial characteristics of an endorsement - designation of the guaranteed debt, designation of the creditor etc. -. The formal requirements do not apply to the endorsement of a full buyer ("§ 350 HGB). A full buyer can vouch also verbally, if the endorsement for it is a commercial transaction. The endorsement of the buyer is always directly liable ("§ 349 HGB), i.e. contrary to the civil-legal defiency guarantees can it not the objection in such a way specified of the Vorausklage valid make, but can in adhesion be already taken, without against the principal debtor on previous complaint a Vollstreckungstitel was obtained and an enforcement attempt from the title remained unsuccessful.

An important characteristic exists concerning an authority for endorsement explanation. This is in exception too "§"§ already form needy of 167 exp. 2, 187 exp. 2 BGB. This becomes relevant also with in blank endorsements (still no demand registered): These are regularly form futile; if this is filled out however intermediate and it for the creditor endorsement promises thereby no longer recognizably that an in blank endorsement existed, is effective the promise. The promise is obligated because of the right light set by it, "§ 172 BGB similar.

Kinds of endorsements after German right

• BGB endorsement (usual endorsement): The defiency guarantee can refuse the payment, until an execution attempt ran into the mobile fortune of the principal debtor totally or partly fruitlessly.
• directly liable endorsement: The defiency guarantee did in accordance with "§ 773 exp. 1 No. 1 BGB without the objection of the Vorausklage. That means that the safeguard taker can access on the defiency guarantees, without having to try first the execution against the principal debtor. The defiency guarantee clings thus like the principal debtor.
• Endorsement on first requesting

Expire to the endorsement

• Creditor does without the endorsement
• with repayment of the principal claim
• with demand
• at the end of the term with limited endorsement
• if an additionally securing right without agreement defiency guarantees is given up
• Defiency guarantee makes use from a stipulated right to give notice

Note: Death defiency guarantees does not terminate the endorsement!

Endorsement in bank practice

Banks require in practice a directly liable endorsement. This differs from the usual endorsement in the fact that the defiency guarantee does without the right of the objection of the Vorausklage. With inability to pay of the debtor the bank can take to resort on the defiency guarantees so immediately. Thus they avoid a possibly lengthy and expensive procedure against the debtor. Usually the defiency guarantees are however not ready to take over betraglich unlimited endorsements. In this case a maximum amount endorsement is agreed upon, with which the defiency guarantee up to a certain amount clings plus interest, commissions and costs. To the endorsement contract banks take up usually still certain additional agreements:

• The endorsement does not expire during temporary cover of the balance due.
• The endorsement applies temporally for an unlimited period.
• The requirements of the bank against the debtor turn into neither completely nor partly on the defiency guarantee, before the credit is not completely taken off.
• If several persons guarantee themselves, then their endorsement is a joint guarantee, which obligates each in totalliable way.

The endorsement remains existing, even if other collateral is given up.

See also: Fulfillment of a contract endorsement, spouse endorsement

Articles in category "Endorsement"

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