Definition and Legal Context of “Present”
The term “Present” is used in various areas of law and, depending on the legal system and field of application, has different meanings. In a legal context, “Present” generally refers to a state, fact, or event that is actually existing or currently occurring at the present time. The meaning and legal significance of the term vary especially in civil, contract, commercial, and international law.
Areas of Use of “Present” in Law
Present in Contract Law
In contract law, “Present” refers to an obligation, characteristic, or condition that exists at the current moment or is to be fulfilled immediately. An example is the so-called “Present Obligation,” which arises from an already concluded contract and is enforceable without delay. The concept is particularly important when distinguishing between present and future performances or obligations.
Present Condition
The “Present Condition” of a legal relationship can be decisive for its validity, maturity, or enforceability. Contractual rights, such as payment claims, are often contingent upon the occurrence of an event that can be established at present.
Present Performance
“Present Performance” in contract execution describes the immediate, non-deferrable fulfillment of a contractual obligation by a party at the moment of contract conclusion or when due.
Present in International Commercial Law
Especially in Anglo-American jurisdictions, “Present” takes on special importance in the context of “presentment,” such as the presentation and payment of bills of exchange, checks, and other securities. Here, “Present” stands for the presentation of a document or item for inspection, collection, or payment.
Presentment
“Presentment” is the legally required act of a creditor or entitled party presenting a document, such as a bill of exchange, in original to the debtor to demand payment. This presentation must occur within certain statutory or contractual time limits; omission can often lead to legal disadvantages.
Present in Substantive Law Provisions
Present Possession
In property law, “Present Possession” refers to the actual possession of an object at a specific time (present), which may be decisive for claims for restitution or transfer.
Present Ownership
The term “Present Ownership” describes the current ownership right to an item or right, as opposed to a future or conditionally deferred acquisition of ownership.
Present Danger
In public or criminal law contexts, “Present Danger” refers to an immediate hazardous situation, from which powers of intervention, duties to act, or liability questions arise.
Present in Connection with Deadlines and Dates
Present Due
The feature of present maturity (“Present Due” or “Presently Due”) is crucial for payment claims or other obligations, as it determines whether enforcement by lawsuit or execution is possible.
Cut-off Date Principle
Legal consequences are often linked to the existence of certain circumstances on a fixed cut-off date (“Present State”), for example in the valuation of assets or insolvency law.
Significance of “Present” in Procedural and Procedural Law
Presence of Parties and Evidence
In procedural law, personal presence (“Present in Court,” i.e., “personally present”) is often a prerequisite for hearings, proceedings, or witness examinations. Additionally, the presentation (“Presentment”) of documents or physical evidence may be legally required for the continuation of the proceedings.
Distinctions and Deviations in Usage
Distinction from “Future” and “Past”
In legal terms, “Present” is clearly distinguished from past (“Past”) and future (“Future”) events or states. The precise temporal classification is central for the calculation of deadlines, statute of limitations, contract fulfillment, and liability.
Synonyms and Concept Transfer
In German legal language, terms such as “gegenwärtig” (present), “jetzt” (now), “aktuell” (current), or “sofortig” (immediate) are often used synonymously with “Present”, but the specific factual context must be taken into account.
Summary
The term “Present” is a legal term with many facets, whose precise meaning always derives from the specific legal context. Whether describing a present obligation, an act of presentation, current possession or ownership, or a present danger—”Present” always refers to the existence of a circumstance at the current point in time. In legal practice and in the interpretation of laws and contracts, precise definition and understanding of the concept of “Present” are indispensable for evaluating rights and obligations.
Frequently Asked Questions
Which legal provisions govern the acceptance and giving of presents in business dealings?
The acceptance and giving of presents (gifts) in business transactions are subject to numerous legal regulations. In the German Civil Code (BGB), the law of gifts (§§ 516 et seq. BGB) is especially relevant, which covers gratuitous transfers. In economic criminal law, particular attention must be paid to the offenses of bribery and corruption in business transactions (§§ 299, 300 StGB). Accordingly, the acceptance or granting of gifts may constitute a criminal offense if they aim to improperly influence a business decision. Stricter standards apply in public service—e.g., under the Civil Servants Act (§§ 42, 42a BeamtStG), secondary employment law, and related administrative regulations, acceptance of gifts often requires prior approval or is altogether prohibited. Additionally, tax aspects must be considered—such as the deductibility of gifts as business expenses or the payroll tax treatment of gifts to employees (see § 4 para. 5 EStG, § 37b EStG). Companies are required to implement internal policies and compliance systems to ensure legal requirements are met.
Are there value limits for presents in a business context, and how are these assessed legally?
Under German law, there are no statutory, generally applicable value limits for allowed presents in business transactions. Instead, the admissibility of gifts depends primarily on whether they are capable of influencing the freedom of decision or neutrality of the recipient. However, in interpreting bribery laws, courts regularly refer to value limits: gifts of low value (often less than 35 euros per person per year for tax purposes or up to around 10-15 euros for promotional items) are often considered socially acceptable and not subject to penalty. Higher-value presents, however, may exceed the threshold for inadmissibility, especially if they are linked to reciprocation or are given repeatedly. As a result, companies and authorities often set their own internal maximum limits and regularly monitor compliance to avoid legal risks.
What criminal law consequences are possible in the case of unauthorized presents?
Unauthorized presents can have significant criminal consequences. Under § 299 of the Criminal Code (StGB) (“Bribery and Corruption in Business Transactions”), both the giver and recipient may be prosecuted if a gift is connected to improper preferential treatment in competition. Penalties may include fines or imprisonment of up to three years, and in especially serious cases, up to five years. In the public sector, § 331 StGB (“Acceptance of Benefits”) and § 332 StGB (“Bribery”) also apply, which may criminalize mere acceptance of an advantage—regardless of whether it affected a specific official act. Additional consequences may include loss of civil service rights or entries in the Central Trade Register. Alongside criminal penalties, labor law consequences (e.g., warnings, summary dismissal) may also arise.
What tax regulations must be observed when giving presents?
For tax purposes, a distinction must be made as to whether the present is given to a business partner or to an employee. For gifts to business partners, § 4 para. 5 no. 1 EStG provides that they may only be deducted as business expenses if the value per recipient and year does not exceed 35 euros. The granting must also be properly documented and recorded in a separate account. If the value limit is exceeded, the entire deduction is lost. For gifts to employees, the monetary benefit must generally be taxed. There is a possibility of flat-rate taxation under § 37b EStG (30% plus church tax and solidarity surcharge). Furthermore, entrepreneurs must consider VAT consequences, especially pre-tax deduction and correct accounting. Failure to properly record or to correctly handle tax matters can result in criminal tax consequences.
How are presents legally assessed in the context of public contracts and tender procedures?
In the context of tenders and public contracts, even higher standards apply. According to the Act against Restraints of Competition (GWB) and public procurement law (§ 124 GWB), even the attempt to influence procurement procedures through gifts can lead to exclusion from tendering. In addition, criminal law sanctions under §§ 331 et seq. StGB (granting of advantages, bribery) may apply. Companies violating these provisions face not only criminal but also civil and administrative consequences, up to and including exclusion from public contracts, damages claims, and reputational loss. Many contracting authorities therefore require binding declarations from bidders on corruption prevention and integrity as part of the tender submission, covering gifts and other advantages.
What role do internal company guidelines play in relation to presents and how are they to be assessed legally?
Internal company guidelines (so-called compliance guidelines or codes of conduct) are a central instrument for preventing legal risks associated with presents. These generally include specific provisions regarding permitted and prohibited gifts, documentation requirements for value limits, reporting obligations, and approval procedures. Legally, these guidelines constitute an ancillary contractual duty of employment. Violations can lead to labor law measures such as warnings, transfers, or dismissal. In addition, internal investigations and the obligation to self-report to authorities may be necessary if criminal matters are involved. However, such guidelines do not relieve the obligation to observe statutory requirements—instead, they specify and supplement them for individual cases within the company.
Are presents legally problematic in international trade, and what special features apply?
In international trade, additional statutory and international legal frameworks must be observed. Numerous international anti-corruption laws—for example, the U.S. Foreign Corrupt Practices Act (FCPA) or the UK Bribery Act—prohibit any form of bribery, including material presents, regardless of their value. These legal provisions often have extraterritorial effect, meaning that companies based in Germany can also be affected when operating abroad. These laws impose severe penalties, fines, and custodial sentences and are rigorously enforced worldwide. For this reason, international compliance programs are essential, and business partners must be thoroughly informed and trained on compliance with the relevant local and international rules.
