Definition and Significance of the Einwendungsdurchgriff
Der Einwendungsdurchgriff is a fundamental concept in German law of obligations, particularly regarding the legal relationships between multiple parties involved in a legal obligation. It refers to the possibility of asserting defenses and objections that exist within a specific obligation against a third party as well. The Einwendungsdurchgriff is applied in various scenarios of obligations, especially in the law of securities and in the law governing assignments and guarantees, as well as in related cases.
Systematic Classification and Purpose
The principle of Einwendungsdurchgriff serves to protect the debtor or a third party by ensuring that, in certain cases, they are not fully bound by a contract, but may instead assert rights arising from another contractual relationship as a defense. In this way, a fair distribution of risks among multiple parties involved in a legal transaction is achieved.
Distinction from Waiver of Defenses and Objections
The Einwendungsdurchgriff must be distinguished from the often encountered waiver of defenses and objections. While the latter excludes the possibility to assert counter-rights, the Einwendungsdurchgriff specifically preserves or grants this possibility to the debtor.
Prerequisites for Einwendungsdurchgriff
Certain prerequisites must be met for an Einwendungsdurchgriff to be successful:
- Existence of a dependency relationship: Typically, the Einwendungsdurchgriff is only possible if there is an economic or legal connection (dependency) between the relevant contracts or obligations.
- Transferability of defenses and objections: There must be rights that can be asserted as defenses or objections and which, under the legal system, can also be applied from one obligation to the other via the Durchgriff.
- Legal basis or contractual agreement: The Einwendungsdurchgriff is, as a rule, only permissible where a corresponding mechanism is provided for by law or has been contractually agreed upon.
Legal Bases and Statutory Provisions
Einwendungsdurchgriff in Assignment Law (§ 404 BGB)
According to § 404 BGB, when a claim is assigned, the defenses available to the debtor against the previous creditor (assignor) remain effective against the new creditor (assignee) even after the assignment. This protects the debtor from a deterioration of their legal position; thus, the debtor must not be worse off simply because the creditor has changed. This scenario is considered the classic case of the Einwendungsdurchgriff.
Einwendungsdurchgriff in Guarantee Law (§ 768 BGB)
According to § 768 (1) BGB, the guarantor may assert against the creditor all defenses available to the principal debtor, provided these are not based on the debtor’s personal circumstances. This protects the guarantor from claims on the principal debt, even though it may no longer exist due to set-off, deferral, or extinguishment in the main obligation. The right to Einwendungsdurchgriff between guarantor and creditor is thus a key protective provision.
Einwendungsdurchgriff in Cheque and Bill Law
Under bill law (§ 17(2) WG) and cheque law (§ 19 ScheckG), the Einwendungsdurchgriff for the benefit of the obligor is partially restricted. There is a distinction between so-called abstract and non-abstract obligations, whereby the drawer of a bill or cheque cannot, in some cases, assert defenses from the underlying transaction against a bona fide holder.
Einwendungsdurchgriff in Consumer Credit Law
§ 359 BGB regulates the so-called ‘connected contract’. In the case of a linked credit agreement, the consumer may assert defenses from the financed (consumer) contract against the lender, provided both transactions form an economic unit. This provision protects consumers from having to finance a defective principal transaction (e.g., faulty goods).
Types and Scope of Defenses in Einwendungsdurchgriff
Objective and subjective defenses
The Einwendungsdurchgriff generally applies only to objective defenses and objections relating to the obligation itself, not to defenses based solely on the personal circumstances of the contracting party (see also § 404 sentence 2 BGB).
Legal Consequences for the Debtor and Third-party Debtor
Through the Einwendungsdurchgriff, the debtor may assert rights against a new creditor (in case of assignment) or the provider of security (e.g., guarantor) that are independent of the change in party or the external effect of the principal contract. The debtor is thus protected against double claims and gains legal certainty regarding claims brought against them.
Distinction from Other Doctrines
The Einwendungsdurchgriff must be distinguished, in particular, from the following related legal doctrines:
- Durchgriff defense: This refers to a type of defense whereby a third party, who is not a party to the contract, may nonetheless assert rights.
- No application in absolute law of obligations: In the area of absolute obligations (e.g., real rights), the Einwendungsdurchgriff is generally excluded, as there are no initially existing personal legal obligations that would necessitate protection against increased liability.
Examples of Practical Applications
- Assignment case: Creditor A assigns a claim against debtor S to creditor B. S already has warranty defenses against A; S can assert these against B as well.
- Guarantee: B guarantees S’s rent to landlord V. S has set-off rights from counterclaims; if S could assert these rights, B can also use them in their defense against V.
- Consumer loan – connected contracts: In the case of a consumer credit agreement for the purchase of a television, the consumer can assert rights for defects from the purchase contract against the credit institution.
Practical Importance and Legal Policy Considerations
The Einwendungsdurchgriff is of immense practical relevance in handling collateral, secured payment transactions, consumer protection, and the assignment of claims in receivables management. The granting of the Einwendungsdurchgriff particularly serves to protect weaker contracting parties (such as consumers, guarantors) and to maintain risk allocation and apportionment as originally intended by the contract.
Literature References and Further Regulations
- German Civil Code (BGB), in particular §§ 404 ff., 359, 768
- Bills of Exchange Act (WG), Cheques Act (ScheckG)
- Münchener Commentary on the BGB
- Palandt, German Civil Code
- Looschelders, Law of Obligations BT
- Grüneberg, German Civil Code
Summary: The Einwendungsdurchgriff is a central element of German obligation law, enabling a debtor in certain multi-party situations to assert their defenses against new creditors or other third parties. The specific design of the Einwendungsdurchgriff largely depends on the context and statutory basis involved. Its reliable application enhances transparency and fairness in legal relationships in the interest of balanced risk allocation.
Frequently Asked Questions
When can an Einwendungsdurchgriff be asserted in a statutory obligation?
An Einwendungsdurchgriff is always possible in statutory obligations when explicit legal provisions allow for it. This is especially relevant in chain transactions, for example, in consumer goods purchases under § 478 BGB, where the last seller can assert the consumer’s defenses against the supplier of the seller. In all such cases, each party must have its own obligation with the other, and enabling through-passing of defenses must be stipulated by the legislature. The defenses on which the debtor could rely in the original relationship must typically be identifiable and distinct to be passed along. A general, comprehensive Einwendungsdurchgriff outside of express legal provisions does not exist.
How does Einwendungsdurchgriff differ from Anspruchsdurchgriff?
Einwendungsdurchgriff and Anspruchsdurchgriff differ fundamentally in their legal functions. Anspruchsdurchgriff (e.g., under § 334 BGB) allows the creditor to directly assert a claim that a third party has against the debtor, whereas Einwendungsdurchgriff enables the debtor to assert defenses from an external obligation against the creditor’s claim. Thus, the Anspruchsdurchgriff extends the creditor’s right to sue, while the Einwendungsdurchgriff strengthens the debtor’s defense position. These different effects are particularly important in multipartite contract chains, where the respective parties are typically legally separated from one another.
Are there any special features of Einwendungsdurchgriff in consumer protection law?
In consumer protection law, Einwendungsdurchgriff plays a special role, as many provisions are aimed at protecting consumers from disadvantages in contract chains. Important examples can be found in sales law (§ 478 BGB) and in the right of withdrawal for connected transactions (§ 359 BGB). Under these provisions, for example, a consumer who withdraws from a connected loan agreement may also assert defenses from the purchase contract against the lender. This type of Durchgriff serves to ensure effective enforcement of consumer rights and to strengthen consumer protection in contract implementation.
What requirements must be met for a permissible Einwendungsdurchgriff?
The following general requirements must be met for a permissible Einwendungsdurchgriff:
- There must be a statutory case of Einwendungsdurchgriff. Without express legal provision, the Einwendungsdurchgriff is not permissible.
- The original obligation from which the defense arises and the target obligation against which it is asserted must be clearly defined and linked.
- The defense must actually exist in the original obligation and be enforceable at the time of assertion.
- The purpose of the particular provision must be to allow the passing-on of defenses (“Normzweckbindung”).
- There must be no overriding legal reasons (e.g., statutory exclusions) that would preclude the Einwendungsdurchgriff.
What typical defenses are relevant in the context of Einwendungsdurchgriff?
In the context of Einwendungsdurchgriff, the so-called permanent or formative defenses are typically relevant. These include, for example, rescission rights, rights of withdrawal, the defense of limitation, or rights in respect of defects, including claims for supplementary performance, reduction, or damages. The range of admissible defenses is always determined by the relevant statutory scope and is expressly limited by the applicable provisions.
Can a contractual Einwendungsdurchgriff be agreed?
Apart from statutory regulations, a contractual Einwendungsdurchgriff is generally possible provided that the general provisions of contract law and dispositive law do not present any obstacles. In particular, in commercial transactions where the parties typically negotiate at arm’s length, a contractual Einwendungsdurchgriff is permissible and subject to freedom of contract. However, such arrangements must not violate mandatory law, such as consumer protection regulations—otherwise they are void (see § 134 BGB in conjunction with the relevant protective statute).
What is the legislative intent behind the regulation of Einwendungsdurchgriff?
The legislator’s primary aim in regulating Einwendungsdurchgriff is to protect individual contracting parties, often the end buyer or consumer, from disadvantages resulting from the legal independence of agreements within contract chains. Since the end buyer would otherwise be required to assert defenses separately at every level, which could entail considerable practical disadvantages, the Einwendungsdurchgriff is intended to improve legal protection and ensure fair risk allocation. This ensures that rights in respect of defects and other defenses can be enforced without lengthy parallel proceedings and prevents circumvention of statutory consumer protection provisions.
