Co-Creditor Relationship

Concept and legal framework of joint creditors (Mitgläubigerschaft)

Definition of joint creditors (Mitgläubigerschaft)

Mitgläubigerschaft is a term under German law of obligations, referring to a legal relationship in which several persons are collectively creditors of a divisible claim against one or more debtors. The legal structure of Mitgläubigerschaft differs significantly from other multi-person relationships, such as Gesamthand (joint ownership) or Gesamtgläubigerschaft (joint and several creditors). Its main characteristic is that the claim of the creditors against the debtor is divided into individual shares, with each creditor only entitled to demand their own share.

Statutory regulation

The statutory basis for Mitgläubigerschaft primarily arises from Section 420 of the German Civil Code (BGB). According to this provision, unless otherwise resulting from the legal relationship or the circumstances, several creditors of a claim are, in case of doubt, only entitled to equal shares. However, this principle may be modified by specific contractual agreements, testamentary dispositions (e.g., within a community of heirs), or special legal provisions.

Distinction from other multi-person relationships

Difference from Gesamtgläubigerschaft (joint and several creditors)

Gesamtgläubigerschaft (§ 428 BGB) is characterized by each creditor being entitled to the entire claim, but the debtor may render performance to any creditor with a discharging effect. Upon performance to one creditor, the claims of the remaining creditors are extinguished. In contrast, in Mitgläubigerschaft, each creditor is limited to their share only.

Distinction from Gesamthandsgemeinschaft (joint ownership community)

The Gesamthandsgemeinschaft (e.g., in communities of heirs or civil law partnerships) refers to an undivided creditor position of all involved, in which the claim is jointly administered and collected. Mitgläubigerschaft differs in that the assignment right is specifically attributed to each creditor.

Legal nature and origins

Origins of Mitgläubigerschaft

Mitgläubigerschaften typically arise through contractual agreements (e.g., joint lenders), by law (e.g., within the joint claim of partners in a partnership), or through administrative acts (e.g., joint grant notices). Typical cases also include the splitting of a claim, such as in assignment of claims or after a partial settlement.

Types of Mitgläubigerschaft

A distinction is made between statutory and contractual Mitgläubigerschaft. While statutory Mitgläubigerschaft is based on certain facts, contractual Mitgläubigerschaft can be expressly or implicitly agreed. It is always decisive that the claim is divisible and that each creditor is entitled to an independent claim to their share of the total claim.

Legal consequences of Mitgläubigerschaft

Rights of individual creditors

Each joint creditor may assert only their own share of the claim against the debtor (§ 420 BGB). There is no entitlement to demand or dispose of the shares of the other joint creditors.

Performance by the debtor

The debtor is obliged to fulfill the claim proportionally. Performance to one joint creditor only releases the debtor to the extent of the claim of that creditor. Full performance to a single joint creditor is generally excluded, unless the other joint creditors authorize them to receive payment.

Transfer and inheritability

The individual claim shares of joint creditors are generally assignable (§§ 398 ff. BGB) and inheritable. Each creditor may dispose of their share independently of the other joint creditors, unless otherwise contractually agreed.

Set-off and debtor’s counter-rights

A debtor may only set off counterclaims against a joint creditor if they exist against that creditor. Set-off against the entire group of creditors is not possible, unless a right of set-off arises from a Gesamthand claim relationship.

Practical examples and areas of application

Practical example

If several private individuals grant a loan to a third party together without explicit agreements regarding the handling of creditor status, in the absence of a Gesamtgläubigerschaft, there is generally a Mitgläubigerschaft: Each creditor can demand their portion from the debtor.

Applications

Classic applications include joint monetary claims, existing claims from contracts for work, tenancy agreements with multiple landlords (e.g., joint ownership communities without a joint account), or joint claims for damages by several injured parties against one tortfeasor, each for their own loss.

Differences between Mitgläubigerschaft, Gesamtgläubigerschaft, and Gesamthandsgemeinschaft at a glance

Statutory special provisions and modifications

Depending on the area of law, special statutory provisions may modify the general principles of Mitgläubigerschaft, especially in company law, inheritance law, family law, or in the context of public law performance relationships. The contracting parties are also free to make different arrangements in individual contracts, provided there are no statutory prohibitions and the claim is divisible.

Summary

The Mitgläubigerschaft is a central institution of German law of obligations for handling relationships with multiple creditors in the case of divisible claims. It is characteristic that each creditor has their own claim to a share of the total claim. The debtor is thus only obliged to fulfill each creditor’s share individually. The legal structuring and distinguishing from other forms of creditor plurality, such as Gesamtgläubigerschaft or Gesamthandsgemeinschaft, always require careful analysis of the contractual and statutory situation. Knowledge of the possibilities for structuring and the legal consequences is essential for drafting and managing legal relationships with multiple creditors.

Frequently asked questions

How can claims be asserted among several joint creditors?

In the context of Mitgläubigerschaft, several persons are entitled to a claim jointly against a debtor. The joint creditors, also called Gesamtgläubiger, can generally assert the claim only collectively, unless otherwise specified by law or agreement. This means the debtor is generally only obligated to perform with effect for all joint creditors. Each joint creditor is entitled to assert the entire claim for all, but the debtor may only perform to all joint creditors together or to one of them with appropriate authorization. A different approach, in particular allowing a single joint creditor to dispose of their share or to independently bind the debtor, is generally not permitted.

What happens if one of the joint creditors waives the claim?

If one of the joint creditors waives their share of the claim, this does not generally affect the rights of the remaining joint creditors, unless there is a Gesamthandsgemeinschaft as defined by specific regulations (e.g., community of heirs, partnership under BGB). The waiver by a single joint creditor thus typically does not release the entire claim, but only reduces it internally. The debtor must therefore continue to perform to the remaining joint creditors unless otherwise agreed. In special cases involving Gesamthand (such as a community of heirs), a waiver may have an overall effect, so the precise legal structure of the Mitgläubigerschaft must always be considered.

Can joint creditors assert claims separately against the debtor?

As a rule, joint creditors cannot assert claims separately against the debtor because the claim exists only collectively and may be exercised only jointly. An isolated action by individual joint creditors is usually inadmissible and results in dismissal of the claim due to lack of active legitimation. Exceptions exist only if the law or a contractual agreement permits separate assertion. As a rule, joint action is necessary, requiring all joint creditors to sue at least in their own name or to be represented by a joint representative.

How does limitation (statute of limitations) affect joint creditors?

The limitation of the claim under Mitgläubigerschaft takes effect uniformly for all joint creditors. This means that if the claim becomes time-barred, it expires with respect to all joint creditors at the same time. Since the claim belongs to all joint creditors jointly, there is no possibility for individual joint creditors to prevent the limitation individually by means such as interruption or suspension. Only timely interruption or suspension that relates to the whole claim will benefit all joint creditors.

What happens if joint creditors disagree about enforcing the claim?

If there is a dispute among the joint creditors about exercising the claim or collecting it, the majority principle generally applies, unless otherwise agreed. Where there is no uniform regulation, decision-making can, for example, be based on shares. In special cases (e.g., communities of heirs), different statutory provisions apply (e.g., § 2038 BGB). If an agreement cannot be reached, the individual joint creditor may basically file an action for consent to joint legal action or, if necessary, assert the claim in court by way of voluntary representation (Prozessstandschaft).

Can a joint creditor assign (transfer) their share of the claim?

Assignment of a share in a joint claim is generally possible but often requires the consent of the other joint creditors or at least a notice to the debtor, as assignment changes the structure of the claim relationship. In a true Gesamtgläubigerschaft pursuant to § 428 BGB, each creditor may assign their share without the consent of the others. However, in a Mitgläubigerschaft based on Gesamthand (e.g., a community of heirs), assignment of individual shares is usually excluded since the right is indivisible.

How does the debtor perform when there are several joint creditors?

If there are multiple joint creditors, the debtor must note that he can only discharge the obligation with effect for all joint creditors, unless otherwise contractually agreed. If the debtor, without the consent of all joint creditors, performs only to one of them, he is released only to the extent that this creditor is entitled to receive; otherwise, there is a risk of double liability. Complete fulfillment requires the debtor to pay all joint creditors collectively or to a joint representative. Special regulations (e.g., in the case of Mitgläubigerschaft pursuant to § 420 BGB) may provide otherwise.