Concept and Legal Nature of Waiver
The term ‘waiver’ in a legal context refers to a legal or sovereign measure by which a claim, obligation, or administrative act is revoked, reduced, or adjusted. Waiver is of significant importance both in civil law as well as in public law, especially in tax law and administrative law. Its practical relevance primarily arises from the ability to eliminate legal obligations wholly or partially.
Waiver in Civil Law
Legal Basis and Functionality
In civil law, the waiver pursuant to Section 397 of the German Civil Code (BGB) is a contract through which the creditor releases the debtor from the owed performance permanently. The waiver agreement is a bilateral legal transaction and requires mutual declarations of intent from both parties. The debtor must expressly accept the waiver offer.
Example of a Waiver Contract
- A creditor is prepared to forgo the repayment of a loan. By concluding a waiver agreement, the debtor’s obligation is extinguished.
Legal Consequences
Upon conclusion of the waiver agreement, the claim is extinguished. The debtor’s obligation to perform lapses upon conclusion of the contract, unless otherwise agreed. If the waiver is agreed under a condition or with a stipulation, the same principles apply as with conditional legal transactions.
Relationship to Other Legal Instruments
The waiver must be distinguished from related legal concepts such as the settlement (§ 779 BGB) and limitation periods. While a settlement involves mutual concessions, only the waiver agreement, without consideration, leads to the lapse of the claim.
Waiver in Public Law
Waiver in Administrative Law
In administrative law, the term ‘waiver’ refers to a sovereign measure by which an authority issues general instructions or internal guidelines for subordinate agencies. Legally, these are not administrative acts, but rather administrative regulations, which have no immediate external effect on citizens.
Typical Areas of Application
- Instructions to subordinate authorities
- Guidelines for interpreting laws or procedures
Administrative regulations in the form of waivers are internally binding on the administration, but do not directly bind citizens. Nevertheless, they exert a significant factual influence on administrative practice.
Waiver in Tax Law
In tax law, the term ‘waiver’ has special significance. Pursuant to § 227 of the German Fiscal Code (AO), the tax authority may wholly or partially waive tax claims if their collection would be unreasonable under the circumstances of the individual case.
Requirements
As a rule, a tax waiver requires:
- Unreasonableness of collection (personal or factual unreasonableness)
- Application by the taxpayer
- Discretion of the tax authority
The tax waiver is part of the so-called equitable measures. It differs from a statutory waiver, such as in insolvency proceedings, where assigned claims are extinguished under certain conditions upon conclusion of the proceedings.
Legal Consequences
In the case of a tax waiver, the tax debt is extinguished—in whole or in part—retroactively. In principle, an objection may be lodged against the rejection of an application for waiver.
Different Types of Waiver in Practice
- Partial waiver (so-called ‘partial waiver’): Only part of the claim is waived.
- Conditional waiver: The waiver applies only if certain conditions are met.
- Deferral and waiver: Legally, waiver and deferral are to be distinguished: with a deferral, the due date is postponed, but the claim is not extinguished.
Special Features and Distinctions
Distinction from Renunciation, Settlement and Deferral
Waiver differs from the mere renunciation of enforcement of rights (the claim remains), and from deferral, which grants only a postponement of payment. In a settlement, mutual concessions are agreed upon.
Formal Requirements
In German civil law, a waiver agreement generally does not require any specific form, unless the underlying transaction is subject to a formal requirement (e.g. in real estate transactions).
Relevance in Court Practice
Waivers can also become relevant procedurally—for example, if a creditor waives part of a claim after initiating legal proceedings, and the claim is thereby partially extinguished. This must be taken into account when determining the subject matter in dispute and in cost decisions.
International Context
The legal concept of waiver also exists in other legal systems, albeit under different names (e.g., English: “release” or “remission of debt”). The respective national legal bases and doctrinal classifications may differ.
Summary
The waiver is a multifaceted instrument in civil and public law which, either by contractual agreement or by sovereign act, revokes or reduces a claim, obligation, or legal consequence. The waiver is of particular practical significance, especially in tax law, administrative law, and in private claims. The requirements, legal effects, and areas of application for waivers are different in each field of law and are governed by a multitude of statutes and regulations.
Frequently Asked Questions
Who is authorized to declare a waiver?
A waiver can generally only be declared by the creditor, as the creditor holds the right to forgo the claim to which they are entitled. Legally, waiver is a bilateral legal transaction that can take place either by concluding a contract or by means of a unilateral declaration of intent that must be received. Particularly in the law of obligations, it should be noted that the waiver agreement under Sections 397 et seq. BGB is subject to special formal requirements where these are prescribed by law or individually agreed in the particular case. Representation of the creditor in waiver matters is permitted, provided there is effective authorization or statutory representation—such as by an insolvency administrator. For the waiver of public law claims, e.g., tax debts, the competent authority is responsible; here, special legal provisions and internal administrative rules apply.
Which forms and requirements must a waiver satisfy?
Under German law, a waiver does not require any special form unless one is explicitly prescribed (for example, for real estate transactions under § 311b BGB). In practice, for legal certainty, a waiver is typically documented in writing, for instance, by a ‘loan waiver contract.’ What is always necessary is an agreement between creditor and debtor concerning the waiver of the claim (‘waiver agreement’ as per § 397 BGB). The declarations of intent must be directed at bringing about the legal consequence—that is, the complete or partial abandonment of the claim. The debtor’s acceptance is usually required since it is normally a bilateral contract; exceptions exist (e.g., implied conduct or debtor’s default of acceptance) where unilateral waiver declarations may suffice.
What effect does a waiver have on the claim and any collateral?
With effective waiver, according to § 397(1) BGB, the creditor’s claim against the debtor is fully extinguished or, in the case of a partial waiver, extinguished to the extent agreed. Existing collateral, such as guarantees or mortgages, are generally extinguished by operation of law (accessory to the underlying claim) unless expressly agreed otherwise. However, this does not always apply to collateral provided by third parties, as such collateral is generally intended by the parties to remain in force unless otherwise agreed. For example, the creditor may insist on a separate agreement to release such collateral. Moreover, waiver only has effect between the contracting parties; any recourse, adjustment, or indemnity claims of uninvolved third parties may survive unless a waiver has also been declared towards them.
How is waiver treated in insolvency proceedings?
In insolvency proceedings, the waiver of claims is significant both in terms of substantive law and procedural law. If the debtor files for insolvency, the creditor may, under an insolvency plan, agree to a partial or complete waiver of claims (comparable to ‘waiver’), thereby reducing the amount registered in the insolvency table. In bankruptcy proceedings, it should be noted that a waiver agreement made with the debtor after the opening of insolvency proceedings may, under § 81 InsO, be invalid since only the insolvency administrator may dispose of the claims at that point. Waivers declared before the opening of insolvency proceedings generally remain effective unless they constitute voidable transactions under §§ 129 et seq. InsO.
Can an earlier acknowledgment of debt be revoked by waiver?
An acknowledgment of debt is, in principle, an independent promise to pay (§ 780 BGB) or acknowledgment of debt (§ 781 BGB), which may be independent of the underlying cause. Such claims can also be cancelled by means of a waiver agreement pursuant to § 397 BGB, provided that both creditor and debtor mutually agree. The waiver then relates to either the abstract or the causal acknowledgment, depending on the content of the preceding legal transaction. Cancellation may occur explicitly by a waiver contract or implicitly through implied agreements or conduct, although the specific legal nature of the acknowledgment must always be taken into consideration.
Are there special regulations for the waiver of public claims (e.g., taxes and levies)?
For the waiver of public claims—particularly taxes and levies—special legal provisions apply. The key provision for tax debts is § 227 of the German Fiscal Code (AO), and for municipal levies, the respective state laws. Waiver may only be declared on grounds of equity, such as when collection would be unreasonable in the specific individual case. This requires extensive case-by-case assessments, and as a rule, a written application by the debtor to the responsible authority. The decision is at the authority’s discretion and is often subject to strict documentation requirements, as well as possible review by the courts in administrative litigation proceedings. There is no legal entitlement to a waiver; the creditor is only required to properly exercise its discretion.
Is a waiver revocable or subject to challenge?
Once effective, a waiver is generally no longer unilaterally revocable, as it is a bilateral legal transaction based on the mutual intent of both parties. However, rescission is possible under the general rules (§§ 119 et seq. BGB), particularly in cases of mistake, fraudulent misrepresentation, or duress. If rescission is successfully declared, the waiver is void from the outset (‘ex tunc’), and the claim is retrospectively revived. In insolvency proceedings, special avoidance rights under the Insolvency Code (InsO) must also be considered, which may allow the reversal of certain transactions, especially unjustified waivers of debt made shortly before the opening of insolvency proceedings.
