Loan Assignment Declaration

Hello builders,

has anyone submitted an assignment declaration for their loan to their house construction company? If yes, what did it look like or what was stated in it?

Hello,

has anyone submitted an assignment declaration for their loan to their house building company.

Why should they sign such a document voluntarily?

Kind regards

The house building company wants a guarantee that they will receive their money. A bank guarantee would also be possible - but it is quite expensive.

Hello,

The house building company wants a security to ensure they get their money. A bank guarantee would also be possible - but it is quite expensive.

Then a financing confirmation should satisfy their "needs," right? After all, this money may only be used for its designated purpose – that is, for building the house.

If your provider insists on an assignment, you have little to no chance to withhold funds due to defective performance until it is remedied => VOB contract.

I wonder why a smart person would act so unreasonably, giving up their oversight/control without necessity?

Kind regards

Well, when we asked which documents were needed, we were repeatedly told that she needed a financing confirmation. She has also received this from us or rather our bank. Now (after sampling), however, they insist on a transfer declaration. I know that this can be informal and that there are two different types. In any case, I want to reserve the right to reduce the invoice amount in case of defects and to make the full payment only after these have been rectified. I just don’t know how to frame the whole thing. I thought I would find someone here who has done something like this before.

Hello,

... Now (after sampling) they insist on a declaration of assignment.

Not the polite, English way

I know that this can be informal and that there are two different types ...

There is only one form of assignment.

1. Declaration:

Legal or statutory transfer of claims.

In an assignment, the previous creditor transfers his claim against the debtor to a new creditor. The knowledge or consent of the debtor is not required.

Although regulated under the law of obligations, the assignment is an abstract alienation transaction. Due to the principle of abstraction, a distinction must also be made here between the assignment contract and the underlying causative transaction.

Requirements for the assignability of a claim are that

[*]the original claim exists validly,
[*]the claim is determined or determinable,
[*]a valid assignment contract exists between the previous and the new creditor,
[*]no prohibition of assignment exists.

It is also possible to assign claims that will arise in the future. The main practical cases are extended retention of title and security assignments. The requirement here is also that the claim is determinable. A claim is determinable if it is specified in the assignment agreement in such a way that it can be defined at the time of its arising in terms of amount and type.

The assignment is excluded by law in certain cases according to § 399 et seq. of the Building Code (Baugesetzbuch) (prohibitions of assignment):

[*]The assignment would lead to a change in the content of the claim.
[*]The assignment is expressly excluded by law.
[*]The parties have contractually excluded the assignment.

The agreement of a prohibition of assignment in the General Terms and Conditions is fundamentally permissible. Such a clause only violates § 307 Para. 1 of the Building Code if the user does not have a legitimate interest in the assignment prohibition or the legitimate interests of the contracting party in free assignability outweigh the opposing interest of the user. These conditions are not fulfilled merely because the prohibition of assignment makes the agreement of an extended retention of title impossible (Federal Court of Justice, 07/13/2006 - VII ZR 51/05).

An exception to the possibility of contractual exclusion of assignment is regulated in § 354a HGB: if the transaction is a commercial transaction for both sides or if the debtor is a legal entity under public law or a public-law special fund, then

[*]the assignment is nevertheless effective.
[*]On the other hand, the debtor may also perform with discharging effect to the previous creditor.

The assignment of a claim within the framework of a claim purchase agreement is called factoring and is a form of financial service.

Relevant laws and regulations:

§§ 398 – 413 Building Code (Baugesetzbuch)
§ 354a Commercial Code (HGB)
§ 287 Para. 2 Insolvency Code (InsO)

Source: our website

Kind regards