Concept and Fundamentals of Transfer in Law
The term “transfer” derives from the Latin ‘transferrere’ and describes, in the legal context, a process of transferring, relocating, or moving objects, rights, obligations, claims, or other assets from one legal entity to another. The legal significance of a transfer is multifaceted and applies in various areas of law, such as civil law, public law, tax law, labor law, as well as international law. The essential aspect of transfer, in the legal sense, is always the displacement of a legal position under specific legal conditions.
Types of Transfers
Transfer of Ownership and Possession
In property law, transfer usually refers to the transfer of ownership of movable or immovable objects (§§ 929 ff., 873 ff. BGB). The legal framework is determined by the respective formal requirements and prerequisites, in particular agreement and delivery or registration in the land register. The transfer of possession differs from the acquisition of ownership and is subject to its own regulations, for example in the form of transfer of possession or constitutum possessorium.
Transfer of Rights in the Law of Obligations
In the law of obligations, transfer is especially relevant in the assignment of claims, rights, and entitlements. The assignment of claims – the so-called cession pursuant to §§ 398 ff. BGB – is another central application. Through an assignment contract, the creditor’s right to demand performance is transferred to a third party. Special requirements apply for the transfer of inalienable rights, which sometimes require the consent of the debtor or third parties.
Transfer of Obligations (Assumption of Debt)
Transfer of obligations is also possible. The assumption of debt under §§ 414 ff. BGB allows the transfer of a liability from one debtor to another. Usually, the creditor’s consent is required for this. This is to be distinguished from the accession of a new debtor to the contract.
Transfer of Intellectual Property Rights
In the field of intellectual property law (e.g. copyright, patent law, trademark law), transfer typically occurs through the granting or transfer of rights of use. The complete transfer of such a protective right is legally classified as an assignment and regularly requires written agreements, sometimes with registration in the relevant registers.
Corporate Law Transfer
Within the scope of corporate transactions (share deal, asset deal), the transfer involves company shares or assets along with all associated rights and obligations. This involves extensive requirements under company law, commercial law, and, where applicable, antitrust law. In mergers under the Transformation Act (UmwG), a universal succession transfer takes place.
Transfer in the International Context
Cross-border Transfers and Transfers in International Law
At the international level, transfers are of particular importance in treaty law and international private law. Here, rights and obligations arising from treaties between states, sovereign rights, or contractual positions can be transferred between nations (e.g., transfer of sovereignty, contract transfer in intergovernmental trade agreements). Transfers also play a role in European law (primary and secondary EU law), for example, when transferring competences to European institutions.
Employee Transfer and Posting
In the European context, employee transfer (especially posting) is a significant topic. The EU Posting of Workers Directive and the German Posting of Workers Act (AEntG) regulate the legal framework under which workers may be transferred to other European countries. Specific reporting requirements, working conditions, and social security provisions need to be observed.
Tax Law Aspects of Transfer
Transfer Operations and Tax Obligations
Transfers can have tax consequences. Real estate transfer tax is payable, for example, when ownership of land is transferred. Gifts and inheritances (inheritance tax, gift tax) are also taxable if they involve asset transfers. In the company context, the income tax consequences of asset or share transfers must also be considered.
Transformation Tax Law
The Transformation Tax Act (UmwStG) governs tax issues in connection with restructurings, such as mergers or demergers, and ensures that transfers can take place on a tax-neutral basis under certain conditions.
Transfer in Labor Law
Transfer of Business (§ 613a BGB)
The legal transfer of employment relationships is particularly relevant in the context of business transfers under § 613a BGB. Here, the rights and obligations associated with the employment relationships are transferred to the new business owner, with the interests of the affected employees protected through information requirements and rights of objection.
Employee Leasing
Employee leasing, regulated by the German Employee Leasing Act (AÜG), is also a temporary transfer of labor subject to special legal requirements (licensing, equal treatment, and information obligations).
Transfer of Funds and Payment Flows
Banking and Payment Services Law
In banking and payment services law, transfer encompasses payment transactions, that is, the transfer and forwarding of amounts of money. Here, regulations—particularly under the Payment Services Supervision Act (ZAG), the German Civil Code, and European payment services directives—are decisive. The transfer of funds is often subject to reporting and documentation requirements aimed at preventing money laundering.
Transaction Structure in Payment Transactions
The legal transfer process is characterized by the tripartite relationship between payer, payment service provider, and payee, each with their own obligations and liability rules.
Special Features: Transfer in Sports Law
Player Transfers
In sports law, transfer regularly refers to the change of a contract player from one club to another (player transfer). Here, specific association rules apply, including transfer windows, transfer fees, and international clearance procedures, which are aligned with labor and contract law requirements.
Legal Consequences and Protection Mechanisms in Transfers
Formal Requirements, Consent, and Transparency
Transfers are generally subject to formal requirements (e.g., written form, notarization) and often to obligations for third-party approval. Transparency requirements are intended to protect those affected, for example through rights to information and objection.
Protection against Abusive Transfers
Protection mechanisms are mainly established to avoid the detriment of creditors, for example within insolvency law (contestation under the German Insolvency Code – InsO) or to prevent tax evasion.
Summary
Transfer is a central, cross-sector legal concept that describes the transfer of legal positions, obligations, assets, or other objects. Depending on the legal field, different requirements, protection mechanisms, and legal consequences exist. Transfers must always be thoroughly examined and structured within the relevant context to ensure compliance with statutory requirements and the protection of the interests of all parties involved.
Reference: Further information can be found under the respective individual terms on transfer of ownership, assignment of claims, business transfer, employee leasing, transformation law, tax law, intellectual property law, international transfers, and player transfer.
Frequently Asked Questions
What legal requirements must be met for a transfer?
For a transfer, especially in a labor law or sports law context, various legal requirements must be met. First, the consent of all involved parties is essential: the transferring and receiving employer or club as well as the transferred individual must agree. In addition, all contractual provisions, such as existing employment or sponsorship contracts, must be observed. In sports, there are also special transfer regulations of the respective sports associations, covering deadlines, transfer fees, and approval procedures. Data protection requirements must be observed, as personal data will be shared. In the case of international transfers, immigration law requirements (e.g., visa and residence law), and if necessary labor law permits, must also be obtained. Lastly, in cases of internal company transfers, the works council may have a right of co-determination, which must be considered.
What role do contractual agreements play in transfers?
Contractual agreements are the central element of every transfer. They regulate both the rights and obligations of all parties involved. In the case of employee transfers, they typically define the timing of the transfer, remuneration, any severance payments or bonuses, as well as non-compete or confidentiality clauses. In professional sports, they also determine the amount of transfer fees, additional benefits, buy-back options, and conditions for premature termination of the transfer. Furthermore, it must be checked whether existing contracts contain clauses that permit or restrict a transfer under certain conditions, such as consent requirements, blocking periods, or termination rights. Without a legally effective agreement and documentation of the transfer, a full transfer cannot take place, and improper agreements can lead to legal disputes or claims for damages.
What legal risks can arise from transfers?
Transfers are associated with various legal risks. The most common risks include violations of labor law or specific sports law regulations, which can lead to the invalidity of the transfer and sanctions. If contractual arrangements are incomplete, there is a risk of additional claims, damages, or labor law lawsuits. In the sports sector, disregarding association rules can lead to penalties such as suspensions or point deductions. Data protection errors can result in fines under the GDPR. In international transfers, there are also risks due to missing labor or immigration permits, which can result in a prohibition of employment. Moreover, there is a risk that third parties, such as sponsors or previous contracting partners, may derive legal claims from the transfer.
What co-determination rights does the works council have in transfers?
According to German law, the works council has various co-determination rights regarding transfers within a company, especially resulting from §§ 99 and 102 BetrVG. For transfers of employees, the works council must be heard before the measure is taken and may, under certain circumstances, refuse its approval. If there are significant changes to working conditions or the place of work, the right of co-determination also applies in the context of reconciliation of interests and social plan negotiations. The works council can also be involved in matters relating to working hours, remuneration systems, and job security in international transfers. If the works council is not properly involved, this can render the measure invalid.
What role does data protection law play in the transfer of persons?
Data protection law is of crucial importance in the transfer of persons—especially employees or athletes. Personal data such as names, contract details, salary data, and performance information are regularly transmitted between institutions or companies during a transfer. According to the GDPR (General Data Protection Regulation), this requires either the consent of the data subject or another legal basis, such as contractual necessity or a legitimate interest. The data may only be used for the purposes of the transfer and must be protected against unauthorized access. Incorrect or unauthorized data transmission can result in fines and make the transfer legally vulnerable.
How is an international transfer carried out legally?
An international transfer requires compliance with more complex legal conditions. In addition to concluding a new employment, service, or transfer contract, labor law permits (such as work permits) and immigration documents (visas or residence permits) are usually required. The rules of private international law must still be observed to determine which law applies to the transfer process. In sports, the international regulations of the relevant world federation apply, such as the FIFA Transfer Matching System, which prescribes specific documentation and verification obligations. If a party violates these provisions, sanctions up to a ban on international transfers may result.
What role do arbitration courts or association tribunals play in the event of a transfer dispute?
If disputes arise in a transfer, for example over transfer fees, breach of contract, or the interpretation of transfer conditions, the arbitration or association tribunals specified in the contract are usually competent. In sports, specialized sports or association courts, such as the Court of Arbitration for Sport (CAS), are generally responsible for the decision. These bodies are required to review and decide cases promptly and in accordance with nationally and internationally recognized legal principles. In other areas, labor courts or civil courts may need to be involved if there is no valid arbitration agreement. The procedure is then governed by statutory provisions and involves costs, deadlines, and procedural risks.
